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CIHM/ICMH 

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Canadian  Instituta  for  Historical  IMicroraproductions  /  Institut  Canadian  da  microraproductions  historiquas 


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REMARKS 


OK  THK 


inglisi  O^nlistment  Question, 


WITH  AN  ABSTRACT  OF  THE  CORRESPONDENCE 


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THEREON. 


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BY    R.    W.    RUSSELL, 


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NEW  YORK: 
WM.  C.  BRYANT  &  CO.,  PRINTEllS,  41  NASSAU   ST.,  COR.  LIBERTY. 

1856. 


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REMARKS 


ON   THE 


ENGLISH  ENLISTMENT  QUESTION. 


The  following  remarks  are  made  without  the  authority  or 
cognizance  of  any  English  official,  and  in  some  respects 
may  be  opposed  to  the  English  view  of  the  subject  in  con- 
troversy. 

The  writer  has  had  no  means  of  information  other  than 
those  afforded  by  the  public  press.  He  has  not  been  pro- 
fessionally engaged  or  consulted  by  any  or  eitlier  of  the 
parties  alleged  to  be  implicated  in  the  violation  of  the  Act 
of  Congress  respecting  foreign  enlistments  ;  and  his  reflec- 
tions may  be  regarded  as  those  of  a  perfectly  disinterested 
observer.  On  the  23d  January  last  he  published  in  the  K. 
Y.  Herald  a  letter  upon  the  (luestiou  as  to  what  is  the  true 
spirit  and  meaning  of  the  Act  of  Congress  prohibiting  foreign 
enlistments  in  the  I'^nited  States,  and  the  liiring  ov  retaining 
of  persons  to  go  abroad,  with  intent  to  be  enlisted  in  foreign 
service.  Having  thus  embarked  in  the  discussion,  he  feels 
constrained  to  support  his  position  by  a  review  of  the  cor- 
respondence between  the  English  and  American  Govern- 
ments, which  was  published  in  the  newspapei-s  in  the  latter 
part  of  February  last. 

In  additi(  n  to  the  letter  before  referred  to,  the  reader 
will  find  the  substance  of  that  correspondence,  and  a  co- 
pious extract  from  the  opinion  of  Mr.  Attorney  General 
Gushing,  (as  published  in  the  N.  Y.  Herald,)  with  various 
remarks  on  the  questions  of  law  and  fact  involved  in  the 
discussion  between  the  two  Governments. 

New  York,  April,  1856. 


i  i 


',  i 


,!■ 


V' 


r.ETTEB   ON  THE   ENGLISH  ENLISTMENT  QUESTION,  PUBLISHED  IN 
THE  NEW   YORK   HERALD,    23r)  JANUARY,    1856. 

1  It  has  been  pretty  generally  assumed  of  late  by  the  news- 
paper press  of  this  country,  upon  the  siq^posed  autliority  of 
tlie  oi)inionjt  of  Judges  Kane  and  IngersoU,  and  Mr.  Attor- 
ney-General Cushing,  that  it  is  unlawful  to  assist  or  induce 
any  one  to  leave  tlie  United  States  for  tlie  purp<  so  of  en- 
listing himself  in  the  service  of  u  foreign  government ;  and 
before  Judge  Kane's  decision  in  riiiladclphia,  in  the  case 
of  the  United  States  vs.  Henry  Hertz,  the  Attorney-General 
of  the  United  Spates,  in  an  otticial  letter  dated  Attorney- 
General's  office,  September  12,  1866,  and  addressed  to  Mr. 

2  Van  Dyke,  the  District  Attorney,  at  Philadelphia,  insists 
that  even  if  the  letter  of  the  law  had  not  been  violated  by 
the  agents  of  the  Britisli  Government,  tho  spirit  of  the  law 
had  been  evaded.  The  President's  message  ulso  takes  the 
same  ground. 

I  propose,  with  your  permission,  to  inquire  what  is  the 
true  spirit  and  meaning  of  this  lav\  which  has  been  so  dif- 
ferently undei-stood  by  tho  agents  of  the  British  Govern- 
ment on  the  one  hand  and  some  of  the  American  authori- 
ties on  the  other. 

It  will,  I  presume,  be  conceded  that  any  person  in  the 
United  States  has  a  right  to  go  abroad  and  serve  in  any 
foreign  ann^^ ;  also,  that'it  was  not  until  recently  understood 

3  by  the  public  that  it  was  criminal  to  advise,  induce,  per- 
suade, or  assist  men  to  go  abroad  for  that  purpose. 

It  never  occurred  to  me,  for  instance,  that  the  act  of 
Congress  passed  in  the  year  1818  (re-enacting  the  law  of 
June  6,  ITD-l,)  which  provides  that  no  pereon  shall  "  hire 
or  retain"  another  to  go  out  of  the  United  States,  "  with  in- 
tent to  be  enlisted,"  would  be  construed  to  mean  that  I 
should  not  be  allowed  to  recommend  or  assist  a  poor  unem- 
ployed Englishman  in  New  York  to  go  to  Canada  to  erdist 
in  the  British  army.  I  supposed  that  the  act  w^as  merely 
designed  to  prohibit  contracts  to  enlist^  or  contracts  to  go 


abroad  with  mtent  to  he  cnllMt'd — tJiat  h  to  say,  to2^roh{hH 
lohat  is  commonly  knoicn  as  "  recrtiitinr/.''-  (1) 

It  appears,  Itowover,  tlmt  I  iiuiat  liavo  1)ecn  all  wrong  in 
tills  idea,  if  Mr.  Attorncy-(  Joueval  Cnsliing  and  the  President 
have  rightly  intei-preted  the  law ;  and  oven  if  tlioy  have 
not,  the  Attorney -(ioneral  will  insist  that  my  act  would  he 
an  invasion  of  the  spirit  of  the  law. 

lliis  appears  to  mo  to  ho  a  mere  gratnitons  nssnniption, 
taking  for  granted  what  is  not  in  the  slightest  degree  pro- 
hahle,  viz.,  that  C'ontjrc.Hxint*  mini  to  prolnbit  any  one  from 
advising,  indnrinf/,  jjersuadinff  or  amistlwj  another  to  go 
abroad  to  eidist.  (2) 

'^riie  first  question  which  naturally  arises  is,  if  such  had 
been  the  intention  of  Congress,  would  not  approjmate 
words  have  heen  K.<n'd — would  not  the  law  have  prohibited 
such  acts  in  direct  terms,  instead  of  merely  prohibiting  acts 
oi hiring  or  retaining  ? 

Tlie  Knglish  statute  r»9  C I oo.  IIT,  c.  (!!>,  makes  it  a  mis- 
demeanor to  attempt  to  got  others  to  go  abroad  to  servo  a 
foreign  prince;  but  then  the  same  act  prohibits  any  English- 
manfrom  entering  into  or  agreeing  to  enter  into  the  service 
of  a  foreign  prince  or  people.  (;V)  It  is  rpiito  clear  that  Con- 
gress did  not  intend  to  make  sack  a  law  as  that,  for  the 
government  of  the peojtie  of  the  Cnittd  States.  Indeed,  the 
constitutional  power  of  Congress  to  go  so  far  as  that  nn"ght 
well  1)0  doubted.  N'or  has  anv  State  of  the  Union  vet 
deemed  it  necessary  or  ])roper  to  prohibit  its  citizens  from 
serving  in  foreign  armies.  And  no  such  prohibition  being 
in  existence,  no  law  has  been  enacted  by  any  c.  ?Iic  States. 
making  it  penal  to  advise  or  assist  citizens  to  go  ahroad 
to  enlist.     It  is  evident,  moreover,  that  such  a  law  would 


6 


Note  1. — This  is  the  construction  put  on  the  law liy  Mr.  Mnicy's first  letter 
(see  post  folio  60)  by  Judge  Kane  (see  post  folio  72).  and  in  Lord  Claren- 
don's letters  (post  folios  6l>,  72,  105,  107,  110). 

Note  2. — Mr.  Marcy  contends  in  his  leltcr  of  Dee.  28th  (see  post  folio  178) 
that  Bucli  was  the  intention  of  Congress,  but  the  position  assumed  by  him  in 
that  letter  is  inconsistent  with  his  remarks  referred  to  in  the  previous  note. 
See  comments  on  this  inconsistency  (post  folios  ISS,  lob). 

Note  3. — Mr.  Buchanan  erroneously  assumes  that  the  policy  of  the  English 
and  American  laws  on  this  subject  are  identical  (see  post  folios  59,  292  to  297). 


It 


6 


'I' 


u 


bo  a  rank  absurdity,  so  long  as  the  citizen  is  allowed  to  go 
of  Ills  own  accord. 

In  the  case  of  Hertz,  tried  before  Judge  Kane,  in  Phila- 
delphia, the  instructions  alleged  to  have  been  given  by  the 
British  Minister  to  the  witness  Strobel,  contained  the  fol- 
lowing : — 

"  Memoranda  for  the  guidance  of  those  who  are  to  make 
known  to  persons  in  the  United  States  the  terms  and  con- 
ditions upon  which  recruits  will  be  received  into  the  Bri- 
tish army : — 

1.  The  parties  wlio  may  go  to  Buffalo,  Detroit  or  Cleve- 
land for  this  purpose,  must  clearly  understand  that  they 
must  carefully  refrain  from  anything  which  would  consti- 
tute a  violation  of  the  law  of  the  United  States. 

2.  They  must  therefore  avoid  any  act  which  might  bear 
the  appearance  of  recruiting  within  the  jurisdiction  of  the 
United  States  for  a  foreign  strvice,  or  of  hiring  or  retaining 
anybody  to  leave  that  jurisdiction  with  the  intent  to  enlist 
in  the  service  of  a  foreign  power. 

[Both  these  acts  are  illegal  by  the  act  of  Congress  of 
1818,  sec.  2.] 

4.  There  must  be  no  collection,  embodiment  of  men,  or 
organization  whatever,  attempted'within  that  jurisdiction. 

5.  JV^o promises  at'  contracts,  loritten  or  verbal,  on  the  auh- 
ject  of  enlistment,  must  be  entered  into  with  any  person 
within  that  junsdiction.  (4) 


■r  ■  «# 


Note  4. — If  any  agent  employed  by  the  British  Government,  to  give  advice 
and  assistance  to  persons  desirous  of  enlisting  in  the  British  Provinces,  did 
coatrary  to  these  instructions  make  any  contract,  he  did  so  without  author- 
ity, and  no  blame  can  bf  attached  to  the  British  Government  on  account  of  it. 

The  printed  instructions  furnished  to  the  agents  contain  the  following 
caution : 

"  Should  the  strict  observance  of  these  points  be  neglected,  and  the  parties 
"  thereby  involve  themselves  in  diflSculty,  they  are  hereby  distinctly  apprised 
"  that  they  must  expect  no  sort  of  aid  or  assistance  from  the  British  Govern- 
"  ment : — this  government  would  be  compelled  by  the  clearest  dictates  of 
"  international  duty  to  disavow  their  proceedings,  and  moreover,  would  be 
"  absolved  from  all  engagements  contingent  upon  the  success  of  the  parties  in 
"  obtaining  by  legal  means  soldiers  for  her  Britannic  Majesty's  army." 


The  information  to  bo  given  will  be,  simply,  that  to  those  10 
desiring  to  enlist  in  tlio  BritiBh  army,  facilities  Mill  be  af- 
forded for  so  doing  on  their  croHsiiig  the  h"ne  into  British 
territory,  and  the  tenm  qfcred  by  the  British  Government 
may  he  stated  as  matter  of  mfonnation  only,  and  not  as  im- 
plying any  promise  or  eugagomoiit  on  the  part  of  tiiose 
supplying  such  information,  so  long  at  least  as  they  remain 
within  American  jurisdietiun."  (5; 

This  appeal's  to  be  Mr.  Cuahing's  authority  for  the  state- 
ment in  this  letter  l«eion>  referred  to,  that  "  the  (lovern- 
ment  of  Great  lirituin,  witli  extraordinary  inattention  to  the 
grave  aspect  of  its  acts,  namely,  the  tlii<;rant  violation  of  ^1 
our  sovereign  rights  involved  in  them,  has  HUj)posi'(l  it  a 
sufficient  justification  of  what  it  has  done,  to  rejdy  that  it 
gave  instructions  to  its  agents  so  to  proceed  as  not  to  in- 
fringe our  munici]»al  laws  ;"  and  he  continues  :  "  But  if  the 
British  Government  has,  by  ingenious  contrivances^  succeed- 
ed in  sheltering  its  agents  from  conviction  as  via/tfactors, 
it  has,  in  so  doing,  doubled  the  magnitude  of  the  national 
wrong  inflicted  on  the  United  States." 

The  Attorney-General  assumes,  in  the  first  place,  that  the 
acts  authorized  in  the  before  cited  instructions,  would  be 
evasions  of  the  municipal  laws  of  this  country;   and,  so 
condly,  that  such  acts  constitute  a  violation  of  "  our  sove- 
reign rights  as  a  nation." 

No  reasons  are  given  by  Mr.  Gushing  for  either  of  these 
propositions. 

In  a  second  letter  to  Mr.  Van  Dyke,  dated  "  Attorney- 
General's  office,  17th  Septe'Mbcr,  1855," he  says:  "  I  desire 
to  make  t.  further  suggestion  in  regard  to  the  trial  of  par- 
ties charged  with  recruiting  soldiers  in  the  United  States  for 
the  service  of  the  British  Government. 

It  is  known  that  instructions  on  this  subject  were  given 
by  that  government  to  its  officers  in  the  United  States. 


12 


.!■     ! 


Xfote  6. — In  the  case  of  Wngner,  it  was  assumed  by  the  judge,  that  the 
terms  oflfered  by  the  British  Government  were  not  stated  as  matter  of  infor- 
mation only  by  Wagner,  but  that  he  Wagner  promised  on  his  own  behalf  or 
undertook  to  make  a  contract  on  behalf  of  the  British  Government,  that 
Cook  should  receive  certain  pay  for  his  services  as  a  soldier  (see  folio  23). 
This  was  an  unreasonable  coustruotion  of  Wagner's  words  and  conduct. 


I! 


(    ! 

■i  ■ 


n 


13  "We  aro  told  by  Lord  Claren(U»M  that  tlioao  officers  had 
"  8triii<j:oiif  iiiHfrnctionw"  ho  to  i)r()C(*od  us  not  to  violate  the 
iiinuicipul  law — tliatis,  to  violate  its  spirit,  but  not  its  letter 
If  80,  tlio  instructions  tluMusulvus  violate  the  sovereign  rights 
of  the  rnited  States. 

Hut,  in  the  iiioantinio,  every  Consul  (»f  (treat  Britain  in 
the  I'nitcd  States  is,  \t\  the  avowal  of  his  government, 
subject  to  the  just  suspicion  of  breach  of  huv. 

1  am  unal)h'  tu  see,  iin<l  Mr.  Ciishing  due.',  iio*^  attempt 
to  show  how,  'Mho  sovereign  rights  of  the  Ignited  States" 
can  be  violated  by  ///«'  (jl vi luj <tf  1  iifoi'oidtion and df^sistdnce 

14  to  permns  ilixli'liuj  t<>  lulld  hi  the  Ihit'ixli  armi/^  if  the  giv- 
ing of  that  information  and  assistance  be  not  prohibite«l  by 
tlie  nnuucipal  law.  ((!.) 

It  is  worthy  of  observaiion  that  these  letters  of  Mr.  Cush- 
ing,  which  were  very  improperly  road  by  Mr.  \'an  Dyke 
in  oi>en  court  in  J^hiladelphia  in  the  case  of  the  United 
States  tvs'.  ircrt;^,  were  oiKcious,  and  nut  ])roperly  olliciah 
The  duties  of  the  Attoriioy-(ieneral  aro  prescribed  by  law, 
and  it  is  no  part  of  his  duty  to  give  opiinons  or  instructions 
to  District  Attorneys  ;  and  many  of  Mr.  Cushing's  j»rede- 

1«^  cessors  have  refused  to  give  such  opinions  or  instructions. 
(Opinions  of  Attorneys  (reneral,  15(1.)  Mr.  (bushing's  prin 
cipal  object  in  writing  the  letters  to  Mr.  \'au  JJyko,  evi- 
dently, was  to  liiivo  a  Hing  at  tho  Jiritish  (rovernment  and 
its  agents.  Ihit  oven  Mr.  (Jushing  aj)pearis  to  have  boon 
outdone  by  Judge  Kane,  who  is  reported  to  have  charged 
the  jury  as  follows  : 

"Our  peojtle  ami  our  government  have  been  accused  of 
forgetting  tho  obligations  of  neutrality,  and  pushing  our- 
selves forward  into  tho  contlicts  of  foreign  nations,  and  leav- 

16  ing  belligerents  to  light  out  their  own  quarrels.  For  one,  I 
confess  that  I  felt  surprised,  as  this  case  advanced,  to  learu 
that  during  the  very  time  that  these  accusations  were  fulmin- 
ated against  the  American  jjeople  by  tho  press  of  England, 
there  was  on  the  part  of  euunent  British  functionaries  here 
a  series  of  arrangements  in  progress,  carefully  digested,  and 
combining  all  sorts  of  people,  under  almost  all  sorts  of  iniiu- 


Note  6. — Sec  the  dieciissioQ  on  tbia  point  (folios  104,  114,  246  et  seq.) 


^ft'iiii; 


ences,  to  erado  tlio  laws  of  tlio  T^tiitod  Stntoa  })y  wliicli  our  17 
country  souglit  to  oiitorco  its  lUMitrulify  ;  iirningitiiKMils  iiiu- 
tured  upon  a  careful  iuH|)octi()ii  uf  ili.«  ditU'ivnt  hoctions  of 
our  Htatutes  ingenioualy  to  violate  their  spirit  imd  principle 
without  incuniii','  their  penalty,  and  Ihi*  enlist  and  nend 
away  soldiers  from  our  neutral  shores  to  li^lit  the  battles  of 
those  who  were  incontinently,  and  not  over  courteously, 
admonishing  us  to  fulfil  the  duties  of  neutrality. 

"  I  alludo  to  these  circumstances  and  this  train  of  thought, 
gentlemen,  not  because  it  is  one  that  sh(»uld  intlucnce  your 
action  as  jurors,  ])Ut  because  I  feel  it  my  duty  to  ^iiard  you    18 
against  its  influence-*." 

Tiie  Judge  delivered  tills  inihunniatMry  haran^nie,  denounc- 
ing what  he  calls  the  falsi;  accusations  of  the  British  ])res8 
and  the  misconduct  of  i'ritish  funclionarie-,  for  the  mere 
sake,  as  ho  would  have  us  believe,  (>f  sootltiinjt/u'  vihuls  of 
the  jury  !     Faugh  ! 

The  Judge  told  the  jury  that  it  M-ns  not  lawful  for  a  pev- 
Bon  to  engage  another  here  to  <;-o  to  Halifax  for  the  purpose 
of  enlisting.  Ho  did  n(«t  instruct  the  jury  that,  it  was  law- 
ful to  assist,  huhice  and  j}<')'f<Ka(/i'  (inolhtr  to  go  to  Halifax 
for  that  i)ur])ose  ;  and  doid)tless  the  jury  supposed  that  any  19 
one  who  received  assistance  to  go  to  Halil'ax,  em:;aged  to 
go  there  within  the  meaning  of  the  .Judge's  charge.    (7.) 

It  is  observable  that  in  this  case  of  Hertz  the  witnesses 
for  the  prosecution  were  allowed  to  htate  their  conclusions 
of  law  and  fact,  instead  of  detailing  the  cireuni'^tances  from 
which  they  drew  those  conclusions.  The  defence  <loes  not 
appear  to  have  been  a  real  one,  and  it  may  be  added,  that 
the  defendant  is  at  large.  When  we  look  at  the  .ludge's 
charge,  the  reading  of  Mr.  Cushing's  letters  in  court,  and 
other  features  of  this  anomalous  i)n)ceeding  in  the  sha]»e  of 


Note  7. — Judge  Kane  had  previously  licUl  (liut  il  wns  lawful  "  to  pay  the 
passage  from  this  country  of  a  man  wiio  desires  to  enlist  in  u  foreign  |><)rt." 
If  the  judge  had  repented  this  opinion  to  the  jury  in  Hertz's  case  instead  of 
talking  loosely  about  "engaifiiKj"  another  here  to  go  to  Halifax  for  the  pur- 
pose of  eolisting,  it  is  probable  that  Hertz  wou  d  not  have  been  convicted. 
If,  however,  Hertz  did  "  hire  or  retain  "  any  person  to  go  to  llulifux  with  in- 
tent (be,  be  violated  bis  instructions. 

2 


i-_  ■ 


10 


20 


li  t ' 


h  > 


y 


21 


22 


a  trial,  we  may  form  a  pretty  shrewd  conjecture  as  to  how 
and  why  it  was  got  up. 

One  is  not  hired  or  retained  to  go  out  of  the  United  States 
with  intent^  tfco.,  if  he  does  not  enter  into  a  contract  or  obli- 
gation to  do  so.  It  is  necessary  for  the  contract  or  obliga- 
tion to  be  made  in  such  a  way  that  the  party  could  be  sued 
for  a  breacli  of  it,  if  it  were  a  legal  contract.  There  must 
be  an  actual  hiring  or  retainer,  not  a  mere  attempt  or 
offer  to  hire  or  retain,  that  not  being  provided  against  by 
the  act.  If  the  party  receiving  assistance  to  go  abroad  with 
intent  to  enlist,  can  alter  his  mind,  and  stay  here  without 
violating  any  contract  or  engagement  on  his  part,  there  is  no 
hiring  or  retainer  within  the  meaning  or  spirit  of  the  act.  (8.) 

Any  other  construction  would  make  \i  penal  to  give  a  man 
the  price  of  a  railroad  ticket  to  enable  him  to  reach  the 
place  where  ho  intends  to  enlist.  (9) 

It  may  bo  asserted,  without  fear  of  contradiction,  that 
so  far  from  the  spirit  of  the  act  being  as  represented  hy 
Mr.  Cashing,  not  half  a  dozen  votes  could  have  been  obtain- 
ed in  Congress  in  the  year  1794  or  the  year  1818,  or  at  any 
time  since,  in  support  of  a  bill  couched  in  that  spirit.    (10.) 

In  the  case  of  the  United  States  vs.  AVagner,  tried  before 
Judge  Ingersoll  in  New  York,  the  Judge  charged  the  jury 
as  follows  : — 

"  Any  resident  of  the  United  States  has  a  right  to  go  to 
Halifax  with  the  inten  t  to  enlist. { 1 1 )  If  one  person  merely  in- 
fonns  another  that  if  he  went  to  Halifax,  or  any  foreign 
country,  he  can  be  enlisted  as  a  soldier  in  the  service  of  a 
foreign  government,  this  is  no  offence  against  the  law  of 
Congress." 


Note  8. — See  Lord  Clarendon's  remarks  to  the  same  effect  (folios  69,  72, 
107,  110). 

Note  9. — See  the  opinion  of  Judge  Kaiio  on  this  point,  given  before  the 
Government,  insisted  ou  a  different  construction  of  the  law  (folio  72). 

Note  10.— See  remarks  (folios  34,  41.     Notes  87,  95.) 

Note  11.— See  this  subject  fully  discusaed  (folio  28R).  The  existence  of 
this  right  makes  the  authorities  relied  on  by  Mr.  Gushing,  wholly  inapplicable 
to  this  country  (see  notes  16,  30,  95).  And  the  neutrality  of  the  U.  8.  would 
be  in  no  respect  compromised  by  the  exercise  of  the  right  which  haa  existed 
ever  since  the  formation  of  this  goveroment  (See,  per  Galiani,  cited  by  Mr. 
Guthing  folio  198). 


11 


Then  the  Judge  instructed  the  jury  that  if  the  man  28 
named  Cook  "  agreed "  with  Wagner  that  he,  Cook, 
would  go  beyond  the  limits  of  the  United  States  to  Hali- 
fax and  enlist,  and  if  tlie  inducement  of  such  agreement 
"  was  a  promise  on  the  part  of  Wagner  that  he,  Cook, 
when  he  should  so  enlist  should  receive  $30  advance,  and 
rtliould  also  receive  $10  a  month  for  his  services  as  a  sol- 
dier ;  (12)  or  if  u  part  or  the  whole  of  the  consideration  for 
such  agreement  on  tlie  part  of  Cook,  was  the  payment  of 
the  passage  of  Cook  from  New  York  to  Boston,  or  a  pro- 
mise to  pay  snch  passage,  or  if  the  consideration  of  such  24 
agreement,  or  reason,  or  motive,  which  led  to  it,  was  any 
other  promise  of  money  l)y  Wagner,  or  any  other  valuable 
thing ;  and  if  Cook,  when  he  entered  into  such  agreement 
upon  any  such  consideration,  had  tlie  intent  to  go  to  Hali- 
fax, and  there  be  enlisted  or  entered  as  a  soldier,"  the  of- 
fence would  be  complete. 

The  Judge  adds  :  "  3o  that  you  t^ee  that  the  mere  giv- 
ing of  information  is  not  sutlicient — the  mere  starting  to 
go  is  not  sufficient ;  there  must  be  sonic  inducement  such 
as  I  have  stated  to  you."  (I'J)  25 

Upon  this  charge,  it  is  not  probable  that  any  of  the  jury 
understood  the  law  to  be,  that  not  only  might  information 
be  lawfully  given,  as  suggested  in  the  Judge's  charge,  but 
that  any  one  may  lawfully  advise  and  assist,  or  induce 
another  to  go  and  ejdist  in  the  service  of  a  foreign  govern- 


Note  12. — See  remarks  on  this  part  of  the  charge,  ante  note  5,  page  7. 

Note  I.S.— No  exception  couhl  linvc  been  taken  to  the  Judge's  charge  as  it 
was  delivered  ;  but  if  be  had  been  required  to  charge  that  to  "  advise  and 
assist"  is  not  to  "  hire  or  retain"  he  could  not  properly  have  refused  to  so  lay 
down  the  law,  and  probably  would  liave  ooniiilied  witli  the  request.  In 
that  event,  it  is  not  at  all  likely  that  the  jury  would  have  convicted  the 
accused. 

ITie  Judges  charge  properly  construed  is,  that  the  law  is  not  violated  un- 
less a  contract  is  made.  But  tiie  charge,  ns  reported,  was  indistinct,  and  cal- 
culated to  mislead  the  jury.  It  is  true  that  the  Judge  does  not  say  that  the 
payment  of  the  passage  from  this  country  of  a  man  who  desires  to  enlist  in  a 
foreign  po>-t  would  be  a  violation  of  the  Act  (that  it  would  not,  see  per  Judge 
Kane,  poat  folio  72,)  but  the  jury  might  have  supposed  that  such  payment 
constituted  "  some  inducement "  within  the  meaning  of  those  words  as  used 
in  Judge  lugersoU's  charge. 


12 


26 


27 


28 


ment.  The  Judge  does  not  instruct  the  jury  that  one 
may  assist  or  induce  another  to  enlist,  and  yet  that  he,  by 
so  doing,  cannot  be  accused  of  hiring  or  retaining  him  to 
do  so.  But  the  Judge  repeats  to  the  jury  that  the  mere 
giving  of  information  is  no  offence,  from  which  they  could 
but  conchide  that  any  act  beyond  that  would  be  unlawful.  (14) 

To  hire  is  "  to  engage  a  man  in  temporary  service  for 
wages."  (  Johnson's  Diet. )  To  retain  is  "  to  keep  in  pay 
to  hire."  (lb.)  To  constitute  a  hiring  or  retainer,  there 
must  be  a  ])romiso  to  render  services  in  consideration  of 
something  to  l)e  paid  or  done  by  some  other  person. 

As  to  what  constitutes  a  contract,  see  Comyn  on  Con- 
tracts, vol.  1,  p.  1 ;  Chitty  on  Contracts,  p.  3.  The  act  of 
Congress  is  a  penal  one,  and  should  be  strictly  construed  ; 
but  if  consfnted  rver  so  looi<(Iy,  it  could  not  be  made  to 
tnean  that  persuading  a  man  to  enlist  is  hiring  him  to  do 
80,  nor  that  the  ad  of  assisting  a  man  to  go  abroad  is  a 
retainer  of  him  for  that  purpose.  (15) 

It  will  be  observed  that  the  Judge  assumes  that  what 
could  only  have  been  a  rc])resentation  by  Wagner  as  to 
the  bounty  to  be  paid  by  the  British  Government  to  a  sol- 
dier and  his  pay,  miglit  be  treated  by  the  jury  as  a  pro- 
mise on  the  part  of  Wagner  that  such  bounty  should  be 
paid  and  such  pay  allowed.  This  serves  to  show  how  loose 
are  the  Judge's  ideas  as  to  what  constitutes  a  contract  of 
hiring. 

The  jury,  as  miglit  be  expected  from  the  unpopularity 
of  the  cause  of  the  allies  in  the  city  of  Xew  York,  readily 
adopted  the  Judge's  views ;  and  in  the  exercise  of  their 
power  to  decide  u{)on  conflicting  testimony,  preferred  the 
evidence  of  the  single  witness  for  the  i)rosecution  to  that  of 
three  respectable  witnesses  for  the  defendant,  although 
the  former  was,  by  his  own  account,  a  participant  in  the 


Note  14. — Upon  sudi  ii  locc  charge,  a  man  would  be  in  jeopardy  who bftd, 
from  cliaritabic  niotivts,  given  a  few  dollars  to  another  to  enable  him  to 
eniigrati'. 

Note  IT).— Obvious  as  this  may  appear,  it  is  contradicted  by  Mr.  Marcy  and 
Mr.  Gushing,  (folio.s  133,  135,  178,  218).  See  remarks  on  Mr.  Marcy'a  incon. 
siatency.    Notes  30,  86,  37,  folio  295. 


18 


alleged  violation  of  the  law,  and  there  was  no  corrobora-  29 
tion  of  his  testimony. 

Presidecfc  Pierce's  recent  message  lays  down  the  un- 
deniable I'  >osition  that  no  government  can  he  permitted 
to  levy  01  raise  troops  in  the  United  States,  and  that  the 
attempt  to  do  it  would  be  an  unwarrantable  attack  on  the 
national  sovereignty.  In  this  he  is  fully  supported  by 
Vattel,  B.  3,  ch.  2,  s.  15.  (16) 

He  goes  on  to  say  that  when  the  British  Parliament 
passed  an  act  to  provide  for  the  enlistment  of  foreigners  in 
the  military  service  of  Great  Britain,  it  was  not  anticipat- 
ed "  that  the  British  Government  proposed  to  attempt  re-  30 
cruitment  in  the  United  States,  nor  did  it  ever  give  inti- 
mation of  such  intention  to  this  Government.  It  was  mat- 
ter of  surprise,  therefore,  to  tind  subsequently  that  the  en- 
gagement of  persons  witliin  the  United  States  to  proceed 
to  Halifax,  in  the  British  province  of  Kova  Scotia,  and 
there  enlist  in  the  service  of  Great  Britain,  was  going  on 
extensively,  with  little  or  no  disguise."  (17) 


Note  IG. — Vattel  in  the  passage  rcfcrreci  to,  epeaka  of  the  acts  of  indivi 
duals,  ami  says,  Umt  if  they  acted  by  the  order  of  their  Sovereign,  such  a 
proceeding  is  a  sufticient  reason  for  declaring  war  against  iiim,  Vattel  does 
not  say  that  an  aot  which  an  individual  might  lawfully  perform  would  be- 
come illegal  if  dune  V)y  the  order  of  hia  Sovereign.  His  wor<l3  are  "  The  man 
who  undertakes  to  enlist  soldiers  in  a  foreign  country,  without  the  Sovereign's 
permission,  and  in  general  whoever  entices  away  the  subjects  of  another  state, 
violates  one  of  tlie  most  saored  rights  of  the  Prince  and  the  nation.  The 
crime  is  distinguished  by  the  name  of  kidnapping  or  man-stealing." 

As  the  act  of  Congress  proliibits  enlistments  in  the  U.  S.  for  foreign 
service,  tiie  attempt  to  effect  snoh  enlistments  would  be  an  unwarrantablo 
attack  on  tiie  national  sovereignty.  It  would  be  otherwise,  if  no  municipal 
law  founded  on  usage  or  legislation,  forbade  th»'  act.  (see  post  folio  300  et  seq.) 

The  act  of  enlisting  a  person  in  the  U.  S.  for  foreign  service,  could  not 
however  be  properly  called  kidnapping,  as  the  old  slavish  doctrine  of  allegi- 
ance does  not  prevail  here,  a  doctrine  which  "  was  derived  from  the  feudal 
system,  by  which  men  were  diained  to  tlie  soil  on  which  they  were  born  and 
converted  from  free  citizens  to  be  the  vassals  of  a  lord  or  superior."  (post 
folio  270.) 

Note  17. — There  was  no  such  engagement,  i.  «.,  hiring  or  retainer  effected 
by  the  orders  of  tiie  British  Government.  But  persons  were  advised  to  pro- 
ceed to  Halifax  and  tiiere  enlist,  and  were  informed  on  what  terms  they 
could  do  so,  and  were  supplied  with  the  means  of  going  there.  And  all  this 
tb«  Bgent«  of  the  British  Government  supposed  they  had  a  right  to  do.    If 


14 


81  The  President  says  that  suitable  representations  on  the 
subject  were  addressed  to  the  British  Government.  "  There- 
upon it  became  known,  by  the  admission  of  the  British 
Government  itself,  that  the  attempt  to  draw  recruits  from 
this  country  originated  with  it,  or  at  least  had  its  approval 
and  sanction  ;  but  it  also  appeared  that  the  public  agents 
engaged  in  it  had  "  stringent  instructions  "  not  to  violate 
the  municipal  law  of  the  United  States." 

"  It  is  difficult  to  understand  how  it  should  have  been 
supposed  that  trooi)s  could  have  been  raised  here  by  Great 

32  Britain  without  violation  of  the  municipal  law.  The  un- 
mistakable object  of  the  law  was  to  prevent  every  such 
act,  which,  if  performed,  must  be  either  in  violation  of 
the  law  or  a  studied  evasion  of  it,  and  in  either  alternative 
the  act  done  would  be  alike  injurious  to  the  sovereignty  of 
the  United  States." 

In  the  passage  just  quoted,  the  President  is  speaking  of 
the  admission  of  the  British  Government  that  an  attempt 
had  been  made  "  to  draw  recruits  from  this  country,"  by 
causing  agents  to  give  inforniat'ion  tojjersans  likely  to  go  to 

33  Halifax  ivith  intent  to  enli,<:it ,'  and  the  President  very  un- 
fairly and  illogically,  as  it  appears  to  me,  treats  that  as  an 
admission  that  Great  Britain  had  attempted  to  raise  troops 
here  in  the    United  iStates. 

What  he  says  about  "the  unmistakeable  object  of  the 
law,"  is  a  mere  truism.  Now%  //'  the  object  of  the  laio  really 
was  to  2y)'ei^ent  American  citizens  from  entering  into  foreign 
service^  why  does  not  the  President  say  so?  (18)  If  that  had 


(■■' 
I- 

J 

? 

k 

Mr.  Marcy  had  told  Sir.  Crainpton,  that  even  the  publication  of  an  article 
or  advertisement  in  a  newapnper,  Rtatiiig  the  terms  on  which  recruits  would 
be  received  in  the  British  dominions,  would  be  treated  as  a  violation  of,  or 
at  all  events  an  evasion  of  the  spirit  of  the  act  of  Congress,  or  an  infraction 
of  international  law,  it  is  probable  that  under  the  circumstances  no  attempt 
would  have  been  made  to  induce  persons  to  leave  this  country  for  the  pur- 
pose of  entering  into  the  service  of  Great  Britain. 

But  we  find  that  it  is  only  at  a  recent  period,  when  forced  by  the  exigency 
of  the  argument,  that  Mr.  Marcy  takes  this  view  of  ^he  law  (folio  133),  against 
which  may  be  quoted  his  own  exposition  of  the  law  in  the  earlier  stages  of 
the  controversy,  (folios  CO,  60). 

Note  18. — Mr.  Marcy  in  his  first  letter  on  this  subject  (post  folio  45),  states 
the  object  and  intent  of  the  law  in  the  following  words  "  enacted  for  the  ex- 


u 


been  the  intention  of  Congress,  then,  indeed,  it  might  well  34 
have  been  said  that  any  attempt  to  pereuade  or  induce 
American  citizens  to  enter  a  foreign  service  would  be  a 
violation  of  the  spirit  of  the  law,  although  it  does  not  in 
terms  prohibit  such  attempts. 

But  the  undeniable  fact  is,  that  any  American  citizen  or 
resident  of  the  United  States  has  a  right  to  go  abroad  and 
enlist  himself  as  a  soldier  in  a  foreign  service.  And  it  is 
an  irresistible  conclusion,  that  it  is  allowable  to  present  to 
the  public  the  reasons  which  may  be  calculated  to  influ- 
ence them  in  making  up  their  minds  on  the  question 
whether  they  will  assist  either  of  the  belligerents.  (19)  This  is 


press  purpose  of  maintaining  our  neutral  relations  with  ntlier  powers."  And 
he  complains  thnt  persona  had  boen  onlistid  in  the  U.  S.  by  the  authority  of 
the  British  Officials  (folio  48),  that  this  course  of  proceedings  seriously  com- 
promittcd  the  neutrality  of  the  U.  S. 

Note  19. — See  Lord  Clarendon's  argument  on  this  point,  (folio  09).  Presi- 
dent Pierce  docs  not  very  clearly  deny  the  doctrine  contended  for  by  Lord 
Clarendon,  but  yet  the  President  seems  to  take  it  for  granted  that  if  the 
Queen  of  England  should  invite  Englishmen  in  the  U.  S.  to  return  to  serve 
their  native  country,  such  conduct  would  bo  a  violation  of  the  act  of 
Congress.  Mr.  Marcy  is  more  dislinct  on  this  point.  lie  insists  (folio  135), 
that  international  law  has  been  violated  by  tlie  enticement  of  persons  away 
from  this  country  in  order  to  be  euliiitcd. 

He  calls  all  agents  appointed  to  give  information  and  assistance  "  recruit- 
era"  and  treats  all  th«»  statements  contained  in  the  public  advertisements 
issued  by  the  British  authorities  as  offers  made  by  those  agents.  In  this  dis- 
ingenuous spirit  the  discussion  is  carried  on  throughout,  on  the  part  of  the 
U.  S.  Government. 

The  questions  in  dispute  are  plain  and  simple  and  cannot  be  effectually 
mystified  by  ingenious  substitutions  of  other  words  for  those  of  the  act  of 
Congress  "  hire  or  retain." 

These  questions  are : 

1.  Do  I  hire  or  retain  a  man  to  go  abroad  to  enlist  by  merely  advising  or 
asBisting  him  to  emigrate  for  that  purpose  ?  (see  folios  8,  'J7.) 

2.  Did  Congress  intend  to  forbid  such  aid  or  assistance  i  What  was  the 
true  object  of  the  act?  (see  folios  3;?,  43.    Xotcs  22,  95.) 

3.  Is  the  act  of  rendering  such  aid  or  assistance  in  the  U.  B.  a  violation  of 
interaatiunal  law  having  due  regard  to  the  political  conditiou  of  this  country) 
(8e«  folio  211  et  seq.) 

4.  Should  the  British  Government  be  blamed  for  anything  which  may 
have  been  done  by  their  agents,  beyond  the  giving  of  information  and  as- 
•istance,  aeeiog  that  they  were  expressly  ordered  to  do  nothing  more !  (see 
folio  9.    Notu4„i\.) 


«k' 


16 


n 


«l 


36 


35  an  important  right  which  the  citizens  of  a  republic  should 
not  relinquish  or  allow  to  be  impaired.  The  subjects  of  a 
monarch  may  be  allowed  no  option  in  such  matters ;  but  it 
is  otherwise  with  the  republican. 

It  is  true,  that  all  acts  should  be  prohibited  by  law  which 
might  be  complained  of  by  either  of  the  belligerents  as 
breaches  of  neutrality,  but  no  one  will  pretend  to  say  that 
either  of  the  belligerents  has  the  right,  according  to  the  law 
of  nations,  to  require  the  government  of  this  country  to^ro- 
hibit  its  citizens  or  persons  resident  herefrom  going  abroad 
for  the  purpose  of  assisting  the  enemy.  (20)  This  would  be 
more  than  the  utmost  exercise  of  good  faith  towards  either 
party  could  require.     (See  Vattel,  B.  3,  ch.  7.) 

If  the  Government  of  the  United  States  were  to  permit 
expeditions  to  be  fitted  out  in  this  country  to  assist  a  nation 
at  war  Avith  another  (this  country  being  at  peace  with  both), 
there  would  be  a  breach  of  the  neutrality  which  the  law  of 
nations  requires  to  be  faithfully  observed.  (See  Wheaton's 
Law  of  Nations,  part  4,  ch.  3,  s.  16,  17.) 

Vessels,  however,  may  be  fitted  out  in  tlie  ports  of  the 
United  States  for  the  purpose  of  conveying  military  stores 
to  either  of  the  belligerents.  "  It  is  not  considered  as  a 
duty  imposed  upon  a  nation,  by  a  state  of  neutrality,  to 
prevent  its  seamen  from  employing  themselves  in  contra- 
band trade."  (Opinion  of  Attorney-General  Lee,  Dec.  10, 
1795.)    (House  Doc.  No.  123,  26th  Congress,  2d  Session.) 

The  great  fallacy  in  the  Presidenfs  message  lies  in  the 
assumption  that  the  agents  of  the  British  Government  could 
not  lawfully  give  any  information  to  residents  of  this  couti- 


37 


6.  Is  it  unlawful  for  an  agent  of  the  British  Government  to  do  what  a 
private  individual  might  lawfully  do  in  regard  to  giving  information  and 
assistance  to  emigrants  who  intend  to  enlist  in  the  British  service  ?  (see  folios 
68,  291  to  300.) 

Note  20. — See  the  passage  from  Galtani  quoted  by  Mr.  Gushing,  ( post  folio 
198)  where  it  is  laid  down  that  it  is  no  breach  of  neutrality  by  a  neutral 
Sovereign  to  permit  his  subjects  to  enlist  in  the  military  service  of  other 
Governments,  unless  this  permission  be  given  for  the  first  time  on  the  occur- 
rence of  war  between  two  States. 

A  fortiori.  No  nation  can  complain  of  the  exercise  of  the  established 
right  of  the  citizens  of  this  Republic  to  expatriat«  themselvea— still  len  of 
the  return  of  emigraats  to  their  native  countries. 


17 


try  calculated  to  induce  them  to  go  abroad  and  enlist  them-  38 
selves — that  if  the  Britisli  Government  should  succeed  in 
getting  any  recruits  in  tliat  way,  there  must  be  a  violation 
of  the  law,  either  of  its  letter  or  its  spirit.  The  President  ■ 
reads  tlie  haw  just  as  if  it  were  in  the  terms  of  the  English 
act  of  Parliament,  and  as  if  no  difference  existed  between 
the  rights  of  a  British  subject  and  those  of  a  citizen  of  this 
republic. 

With  all  due  submission,  it  appears  plain  to  my  mind 
iliat  indlvi'uak  in  this  country  have  a  perfect  right  to  ren- 
tier material  aid  anil  assistance  to  any  nation  at  war  with 
another,  or  to  any  people  struggling  for  independence.  39 
Not  only  nuiy  articles  be  published  in  the  newspapers,  cal- 
culated to  persuade  or  induce  those  who  sympatiiise  with 
(iiic  of  the  belligerents  to  go  to  his  assistance,  but  subscrip- 
tions may  bo  collected  to  defray  their  expenses ;  articles 
contraband  of  war  may,  at  the  risk  of  the  individuals,  be 
Hont;  loans  may  be  ncgi>tlate<l,  and  everything  short  of  the 
acts  which  the  laws  of  (!ongre^s  now  ]»rohibit  within  the 
jurisdictitMi  of  the  United  States,  may  be  done  without 
alfording  any  jnst  cause  of  complaint  to  a  foreign  nation. 

When  Congress,  in  1704-,  passed  the  act  prohibiting  the  40 
hiring  of  men  in  the  United  States  to  enlist  in  foreign 
armies,  or  the  hiring  of  thcui  to  go  abroad  for  that  purpose, 
tlie  law  of  England  )>rovided  (i)  CJeo.  i^,  c.  30,  enforced  by 
Stat.  21)  (ieo.  2,  e.  17.)  that  if  any  subject  of  (Ireat  Britain 
should  enlist  himself,  or  if  any  person  should  procure  him  to 
he  enlisted,  in  any  i'oroign  service,  or  should  detain  or  em- 
hark  him  for  that  }.urpose,  without  the  King's  license,  he 
shonld  suffer  death.     (4  Black.  Com.,  101.) 

Congress  declined  in> Hating  this  legislation  (which  has 
since  been  greatly  moditied  in  England  by  the  act  59  Geo. 

;5,  c.  CD).  41 

The  British  subjec^t  was  not  allowed  to  go  abroad  to  serve 
another  government,  bccaus(5  he  was  the  property  of  his 
sovereign  ;  (21)  but  the  citizen  of  the  United  States  owns 
himself,  and  has  a  right  to  go  where  he  pleases,  and  Congress 
oidy  desired  to  prevent  such  acts  within  the  jurisdiction  of 


I 


Note  2l.~-Soc  as  to  the  origin  of  tbid  prohibition  post  folio  270. 

8 


I  I 


r 


t' » 


1  '  ' 

i ' 

iJ 


Im 


18 


42  the  United  States  as  might  ho  coinplained  of  by  any  bel- 
ligerent as  involving  a  broach  of  nentrality. 

I  do  not  believe  that  the  framcrs  of  the  act  of  Congresg 
ever  intended  to  prevent  any  man,  or  number  of  men, 
from  furnishing  money  or  other  assistance  to  parties  de- 
sirous of  going  abroad  to  join  in  military  expeditions,  pro- 
vided they  are  not  carried  on  from  the  territory  or  jurisdic- 
tion of  the  United  States,  The  parties  supplying  the  funds 
may  reasonably  ex})ect  that  those  who  received  tlie  money 
or  other  assistance  will  carry  out  their  expressed  intentions; 
but  there  is  no  violation  of  the  law  if  it  bo  left  entirely  to 

^3  them  to  determine  wliether  afterwards  they  will  go  or  not. 
But,  however  this  may  be,  it  is  quite  clear  that  the  admis- 
sion of  the  British  (Tovernment  as  to  the  instructions  given 
as  above  to  its  agents,  does  not  warrant  the  President's  con- 
clusion, it  being  evident  that  the  true  intention  of  Congress 
was  merely  to  prevent  "recruiting"  within  the  United 
States,  and  that  there  was  no  design  or  intentUm  to  prohibit 
citizens  or  residents  fro  ni  ijoing  abroad  for  the  purpose  of 
enlisting  in  any  foreign  service,  and  consequently  no  inten- 
tion to  make  criminal  the  act  of  assisting  them  in  the  exer- 

44  cise  of  their  undoubted  right  to  leave  this  country  for  that 
purpose. 


-.6 


ABSTRACT  OF  THR  CORRESPONDKNCE  BKTWKEN  THE  GOVERN- 
MENTS OF  ENGI.ANn  AND  THE  UNITED  STATES  ON  THE  ENLIST- 
MENT QUESTION,    AS    PUBLISHED  IN  THE  N.  Y.  HERALD  ON  FEB. 

29th,  1866. 

Mr.  Marcy  to  Mr.  Buchanan 

Department  OF  State,  \ 

Washington,  June  J),  1856.  j 

Sir, — Some  time  since,  it  became  ktiown  that  a  plan  was 
on  foot  to  enlist  soldiers  vlthln  the  limits  of  the  United 
States  to  serve  in  the  Britisli  army,  and  that  rendezvous* 
for  that  purpose  had  been  actually  opened  in  some  of  our 
principal  cities.  i>esides  being  a  disregard  of  our  sove- 
reign rights  as  an  independent  nation,  the  procedure  was  a 
clear  and  manifest  infringement  of  our  laws,  enacted  for 


y  bel- 


10 


ihe  express  purjwse  of  mahitaining  our  neutral  relations  46 
with  other potoers. (22)  It  was  not  roasonuble  to  susi)pct  that 
this  scheme  was  ill  any  way  connttMiancod  by  the  Hrltish  " 
Government,  or  any  of  itn  bubonlinato  aiitliorities  reaident 
within  the  United  States  or  in  the  Britisli  Nortli  American 
Provinces;  but  a  further  uxamiuati<»ii  into  tlio  matter  has 
disclosed  tlie  fact  that  it  luis  had  not  oidy  tlio  countenance, 
but  the  active  8U]iport  of  some  of  the  iiulhoritics,  and,  to 
some  extent,  the  sanction  of  the  Ih-itisli  (iovt'niiucnt. 

When  intimations  were  tlirown  out  tliat  the  Ih-itish  con- 
suls in  thiscoujitry  were  aiding  iui(UMU'ourii^Iiig  this  scheme  47 
oi  enlistment  within  our  limits,  Mr.  (Viuii])ton,  II er  Bri- 
tannic Majesty's  Minister  to  tliis  (iovcrmuont,  showed  mo 
the  copy  of  a  letter,  wliicli  lie  had  addressed  to  one  of  tliem, 
disapproving  of  the  ]>roco('(lin<j;',  and  discountenancing  it  as 
a  violation  of  our  laws.  After  tliis  act  on  Ihe  [)urt  of  the 
British  minister,  it  was  contideni  ly  believed  that  tiiis  sclieme, 
however  it  may  have  originated,  and  with  wiuitever  coun- 
tenance it  might  have  been  at  first  looked  nu  l)v  li^iti^ll 
functionaries,  would  at  once  have  been  abandoned.  This 
reasonable  ex]»cctation  has  not  boon  roab'zed  ;  for  i^fortsto  48 
raise  recruits  within  the  United  Statts  for  the  ISiitisIi  Army 
have  not  been  intermitted,  but  are  still  prosecuted  with  en- 
ergy. To  arrest  a  course  of  |>rocce<lings  u'hich  so  srriously 
comproinitted  our  neutralifi/,{2^)  ])rosc('Utions,  by  the  ordo'* 
of  the  Government,  were  instituted  against  the  otfenders. 
This  led  to  develo[)nients  whicli  establiehed  the  i'act  that  the 
Governor  of  Nova  Scotia,  a[)[)arently  witli  the  knowledge 
and  approval  of  ller  Majesty's  Govermnent,  had  a  direct 
agency  in  this  illegal  proceeding. 

I  herewith  send  you  a  coi)y  df  an  order  or  notilic.-tion 
which  has  been  published  in  our  ne\v:^papers,  and  believed 
to  be  genuine,  purporting  to  liavo  been  issued  by  that  func- 
tionary. It  clearly  appears  from  this  document  that  the 
recruits  were  to  be  drawn  from  the  United  States  ;  that  the 
engagements  with  them  were  to  he  made  within  our  limits, 
in  open  violation  of  the  secmid  section  of  the  act  of  Con- 


49 


•'  I   ^) 


II" 


i 


NoU  22. — This  accords  with  the  view  of  tho  object  and  intent  of  the  act 
taken  ante,  (folios  4,  21,  33,  41,)  and  see  post  note  95. 
Note  23. — See  ante  note  18  and  post  folio  252  to  256,  313. 


1    8 

(1 

<■■ 

20 


60  greaa  of  the  20th  April,  1818  ;  and  tlmt  Hritish  oflicials  were 
the  agents*  fuvnisliod  with  the  meiins  for  carrying  the  ille- 
gal measure  into  ofl'oct.  These  agents  have  heen  engaged 
within  our  jurisdiction  devoting  themselves  to  the  execution 
of  this  jdan. 

Notwithstanding  the  legal  mcaRures  taken  by  the  officers 
of  the  United  States  to  suppross  the  procedure,  the  work  is 
still  going  on.  Wo  have  accountn  of  persons  constantly 
leaving  the  United  States  for  the  British  rrovinces,  under' 
engagements,  contracted  here,  to  enter  into  the  British  mili- 
tary service.    Such  engagements  arc  as  much  an  infringe- 

61  meyit  of  our  laws  as  more  formal  enli>'tnicnts.{2-i) 

I  am  directed  by  the  President  to  instruct  yon  to  call  the 
attention  of  Iler  Majesty's  Gctvernment  to  this  sul)ject.  lie 
desires  you  t<>  ascertain  how  far  persons  in  ollicial  station 
under  the  British  Government  acted  in  tlie  tirst  instance  in 
this  matter  with  its  approbation,  and  wliat  measures,  if  any, 
it  has  since  taken  to  restrain  their  unjustiliable  conduct. 

The  excuse  offered  by  the  British  anth(»rities  for  enlist- 
ing or  engaging  soldiers  to  enlist  within  tlie  United  States 
is,  that  Tier  3f<ijeiiti/s  s(dj'Jects,  and  (ren/ians  resident  there- 
in, had exjyressed  a  desire  to  >  iitrr  the  ItrltiNh  (unnj.  This 
fact,  if  it  were  uncpiesticMiabie,  would  not  jnstity  t!ie  l^ri- 
52  tish  authorities  in  converting  the  United  States  into  a  held 
for  recruiting  the  British  army. 

Were  not  the  proceedings  in  open  violation  of  law,  a  re- 
spect for  our  obligations  of  nentralitu,  and  the  observance  of 
the  comity  due  to  us  as  a  friendly  ]iower,  would  render  such 
a  course  by  either  belligerent  disrespectfid  to  us. 


* 


* 


Though  the  proceedings  of  this  government  to  frustrate 
this  scheme  may  have  caused  the  manner  of  carrying  it  on 
to  be  changed,  there  is  reason  to  believe  that  it  is  still  elan- 


Note  24. — Mr.  Marcy  takes  a  correct  view  of  the  law  in  tliis  letter,  but  was 
mistaken  in  supposing  tlmt  the  British  Oovernment  liad  autliorisecl  enlistments 
to  be  made  iu  the  United  States,  or  any  engageniciita  to  be  made  sueh  as  he 
speaks  of.  See  a  totally  different  view  of  the  law  adopted  by  Mr.  Marcy, 
( folio  135)  after  Mr.  Cushing's  opinion  had  been  taken,  August  t»th,  1866, 
upon  the  receipt  of  Lord  Clarendon's  letter  of  July  16th. 


I-  '   '■  - 


SI 


(lestinely  prosecuted  hy  British  ofliccrs  with  meanB  furnish-   53 
ed  by  their  Government. 

*  *  ^*  » 


Mr.  Buchanan. to  Laid  Chirentlon. 

LKOA'PfoN  OK  TMi-:  TlNiTKn  States,  ) 
Luiuloii  July  (),  1855.  j 

#  •>:•  *    "  tk 

The  Aniericmi  (Tovernnicnt  ure  constantly  receiving  in- 
tbrnitttion  W\\xi  persons  arr  Icavimj,  and  have  lift  the  United 
States,  under  cn^jafjnnenta  contracted  v;ithin  their  limits  to 
enlist  aasohliern  in  th(>  JJrilish  urniy  en  thoir  arrival  in  the 
British  J/'"ovinces.(2r))  These  jjcrsous  are  provided  with  54 
ready  Diean  <  of  transit  to  Aura  Scofia,  In  eonsc(inenceoftho 
express  promise  oi'the  Lii'iitenant-^Jovenior  of  that  Province 
to  pay  "  to  iVora  Seotian  and  othi  r  ship  made  rs'''  the  cost  of 
a  passage p>r  each,  poor  man.,  '''•  wiUhttj  to  serve  Her  Ma- 
jesty^''  Hhip]»e(i  iVom  IMiiliKl'^ljihia,  New  York  or  lioston. 

The  disclosnros  niadu  within  the  very  last  month,  upon  a 
j\idicial  invest iujation  at  I'oston,  (a  report  of  which  is  now 
before  the  nn<lei'sii:^ned,)  nllord  go(ul  reason  to  believe  that 
an  extensive  ])lan  hub  boon  organized  by  ilritish  function- 
aries and  agents,  and  is  now  in  sueccssful  operation  in  dif- 
ferent parts  of  tiie  Union,  to  furnish  recruits  for  the  British 
army. 

All  these  acts  have  been  ])erf<inned  in  direct  violation  of 
the  second  nection  of  the  Act  of  Congress  of  the  20th  April, 
1818,  which  provides,  "  That,  if  any  person  shall,  within 
the  territory  or  jurisdiciion  of  the  Tnited  States,  enlist  or 
enter  himself,  or  hire  or  retain  another  pei^son  to  enlist  or 
enter  himself,  or  to  go  beyond  the  limits  or  jurisdiction  of 


55 


Note  25. — It  will  be  observed  that  Mr.  Buclmnan  tlid  not  at  this  time  sup- 
pose that  there  C'uld  be  any  cause  of  eomplaint  at^aiiiat  the  British  Qovern- 
rnont  unless  engnj^emenls  had  Ix'pn  contracted  in  the  way  ho  mentions,  (see 
folio  60)  and  yet  Me  find  Mr.  Gushing  contending  afterwards  that  the  law 
would  be  violated  by  merely  hwiibuj  persona  to  enlist  iu  Canada. 


)/! 


22 


66  the  Unitod  States,  with  intent  to  bo  enlisted  or  entered  in 
the  Horvico  of  any  foreign  prince,  sf.ito,  colony,  district,  or 
people,  as  a  soldier,  as  a  marine  or  Hcanian,  on  board  of 
any  vessel  of  war,  letter  of  niarqno  or  privateer,  every  per- 
son so  ofleniling  shall  be  deemed  guilty  of  a  hi  ;h  niisdo- 
meauor,  and  shall  be  fined  not  exceeding  one  thouH,i"d 
dollars,  and  be  imprisoned  not  exceeding  three  yoM's,"  »fec. 
The  phi  in  and  imperative  duties  of  ncutraliti/,  nnder  the 
law  of  nations,  require  that  a  neutral  nation  tiluill  not  su^'er 
its  ten'itori/  to  become  the  theatre  on  whiah  one  of  thehdliijcr' 
ents  might  raise  armies  to  wage  war  against  the  other.  (20.) 

57  If  such  a  permission  were  granted,  the  i)artiality  which 
this  wouhl  manifest  in  favor  of  one  belligerent  to  the  pre- 
judice of  the  other,  could  not  fail  to  produce  just  ciun- 
plaints  on  the  i)art  of  the  injured  belligerent,  and  mi^'Mf 
eventually  involve  the  neutral  as  a  party  in  the  war. 

The  Govermnent  of  the  United  States,  however,  did  not 
leave  the  enforcement  of  its  neutral  obligatioub  to  rest  alone 
on  the  law  of  nations.  At  an  early  period  of  its  history,  in 
Jime,  1 794,  under  the  administration  ( »f  ( ieneral  Washington, 
KXi  act  of  Cotigress  was  passed  defining  and  enforcing  its 

68  neutral  duties',  (27,)  and  this  act  has  been  HUpi)lie(l,  extend- 
ed and  enlarged  by  the  act  already  referred  to,  a.al  now  in 
force,  of  the  20th  April,  1818.  Under  both  these  acts,  the 
very  same  penalties  lu'e  imposed  upon  all  persons  implicat- 
ed, whether  the  actual  enlistment  takes  place  within  the 
territory  of  the  United  States,  or  whether  an  engagement 
is  entered  into  to  go  beyond  the  limits  or  jurisdiction  of  the 
United  States,  "  with  intent  to  be  enlisted  or  entered  in  the 
service  of  any  foreign  prince,"  *fec.,  &c.  VV^ithout  the  latter 
provision,  the  former  might  be  easily  evaded  in  the  manner 
proposed  by  the  Lieutenant-Governor  of  Nova  Scotia.  //' 
the  law pei^mittedcrty  individuals,  w/mihn  <:fjicial  or  vnoffi- 


Note  26. — ^This  doctrine  ia  unobjectionable.  But  it  by  no  means  follows 
that  a  neutral  nation  is  bound  to  ])reTent  invitatioiin  to  its  citizens  to  enter 
nto  foreign  se'-vieo,  e.»pecially  where  under  the  political  syitem  of  such  neutral 
nation  its  itizens  have  an  absolute  right  of  expatriation.  See  ante  folio  .36 
anc"  -iost  folio.'  252  to  266,  288,  813. 

Note  2*7. — That  was  the  true  object  of  the  act,  and  it,  like  the  act  of  1818, 
tierely  forbaio  enlistments  and  the  hiring  or  retaining  of  persons  to  go  abroad 
with  intent  to  enlist. 


93 


clal,  (28,)  to  mga(/e person n  in  Philadelpbia,  New  York  and   59 
Hoston  to  serve  in  the  British  ariny^  and  to  enter  into  eon- 
tracts  to  transport  thn,,  ''■>  ILt,Iifaj\  thoro  to  cotiiploto  the 
tbnnal  net  ot'cnliHtinont,  llicn  it  is  iiianitoHt  that  this  low, 
to  a  very  ^reat  extent,  would  Ikoohk*  a  dead  K'ttor. 

The  unck'rHi^Mied  is  hap|)\  to  knoi^  tiiuit,  in  this  rospoot, 
the  policy  of  the  liritiMh  Gor^rn/i  ^>t  !.•<  id-ntieal  with  that 
of  the  [Tnitetl  States,  {2U.)  The  foreign  (UiJistincnt  act,  (fiJ) 
(Jeo.  3,  cIj.  C9,)  like  the  aet  of  (Atnf^resH,  intliets  the  sftnio 
|ienaltio3  upon  any  individual  \viio  shall,  within  the  iW'ltish 
dotniriions,  "engage  any  persun  or  porKons  whatever"  "to 
go,  or  to  agree  to  go,  or  eiidmrk  trotn  any  j^urt  of  Tier  60 
\'  ./wty'g  dominions,  tor  the  i)urpo8e  or  with  intent  to  hki  so 
eii'isted,"  aH  though  the  enlistment  had  actualh  taken 
place  within  the  same. 

•  #  4»  » 

Ii;  view  of  all  these  considerations,  tiie  President  has  in- 
Btructed  the  undersigned  to  ascertain  from  the  Karl  of 
Ciarondon  how  fir  persons  in  offieiul  station,  unth^r  the 
Ih'itish  Government,  have  acted  ;  whether  with  or  v  ithout 
its npiirol)ation,  either  in nilistinij  j>ers(>ns  within  th  ( 'niiid 
atates, or  engaging  them  to  proceed  from  thence  to  the  Bi  tish 
Provinoeifor  the  purpose  of  being  there  enlisted,  (30  ;)  and 


Note  28. — Mr.  nuchannn  ia  right  ia  treating  tLe  uctH  of  individuals,  whether 
ofliciul  or  iinofticial,  im  Ht muling  <>n  the  Harne  hitsiH.  A  (lifferent  poniti"*, 
however,  is  anHunu'd  hy  Mr.  Miircy,  (Hee  on  tliia  i>oiiit  folioH  21)4  to  3i"i.) 
Mr.  liiii'hunnn  ix  nUo  rigiit  in  mijing  that  the  law  did  not  permit  inJi- 
vi(hml»  to  eni/afff  (i.  e.  to  contract  with)  otliers  in  I'hihidelpliin,  Nuw 
York,  Ac,  to  servo  in  the  nritixli  army.  Hut  lie  iniHtukos  thu  position  taken 
liy  the  Lieutenant  (rovernor  of  Nova  Hcotiu  who  did  not  authorise  any  such 
oiigagemeiitM  to  bo  made  in  thu  United  States. 

Note  29. — This  is  a  mistake.     ( See  ante  folio  5  and  post  folio  '29'2.) 
Note  8(» — N.  B. — The  only  question  put  to  Lord  Clarendon  is,  how  far  per 
sons  in  oflidal  station   have   acted  '•  either  in   eniiMing   persons   within  the 
ITnited  States,  or  engar/in;/  them  to  proceed  from  thence  to  th«  Britisli  Prov. 
inces  for  the  purpose  of  being  flurc  enlisted." 

On  receiving  th<'  tinswer  of  Lord  Clarendon  that  luMlid  not  believe  that  any 
persons  in  oflicial  station  had  acted  in  the  way  suggested,  and  that  if  they 
had,  their  i-ttn<iu>M  was  unauthorised,  Mr.  Marcy,  under  the  guidance  of  Mr. 
Gushing,  bioaciies  an  entirely  new  theory  and  talks  about  the  seduction  of  peo- 
ple from  the  ITnited  States  as  if  they  were  the  subjects  of  some  despotic 
prince !     And  all  this  after  Lord  Clarendon,  in  order  to  avoid  any  offenc* 


24 


61   what  measures,  if  uny,  have  been  taken  to  restrain  their 

unjuBtifiable  conduct. 

-X-  -x-  *  # 


m 


Mr.  Marcy  to  Mr.  Jhichauan. 

J)j;i'Artmi:nt  ok  Statk,      | 
Was]uii<j::tt>n,  July  15,  1855.  f 

SiK, — Since  my  dispatch  oi  the  0th  ultimo,  in  relation  to 
the  recruitin}i;s()ldicrH  williiii  the  Luitcd  States  for  the  i?ri- 
"2  tish  army,  informatioM  iian  been  received  here  that  the 
business  i.^  not  only  continued,  but  j)rosecuted  with  increas- 
ed vioor  and  success,  and  tbcre  is  nodouiii  that  it  is  carried 
on  by  tlie  ellicieut  aid  ol'  the  oilicci-s  aud  a;j:cnts  of  tlici  i>ri- 
tish  (iovernment.  Il  was  cxiiected,  after  the  attention  of 
Her  Britannic  ]\ljijosty's  Miiuster  near  ibis  (iovernment 
was  directed  to  this  suliject,  and  after  he  had  presented 
Lord  Clarendon's  note  of  ihe  V.h\\  of  April  last  to  this  De- 
partment, and  given  assurance  tbat  Htej)s  had  been  taken 
to  aiTCst  the  illegal  proceilure,  tbat  we  should  have  witnes- 
sed nt.  further  particijiation  by  Hritish  functi^jiuiries  in  the 

attempt  to  invade  our  sov>' reignty  and  defy  our  laws. 
63  ^v  ^  •     *  ,, 

Tlie  notiiication  (»f  the  Governor  of  Nova  Scotia  (a  copy 
(»f  whicli  accompaiued  my  di>patch  of  lliu  !Hh  idtimo,)  is 
inirevoked  ;  agents  in  our  jirincipal  cities  are  now  busily 
cngagiid  in  makhuj  rontraets  imth  persons  to  go  into  the 
British  Provinces,  and  there  to  (!nm]>letc  their  eiirolmeT-l,  in 
tlie  British  army  ;(.'5l)  liberal  adv;in(u.'S  still  continue  to  be 
made  as  an  imbKuunent  Wn-  enlei-ing  into  snchf  it</a{/>'nu'nfs, 
and  a.  free  jxinsaye  to  the  British  J/nwinces  is  provided  for 


being  n^iveti  to  tliis  coimlry  I'V  tlioovir-zciil  of  llmsulpDrdiMutoH  (tf  tlie  British 
Ufiverrirrii'iit,  li.id  ilmi''  far  niorf  tliaii  <'(iiil(l  li!i\<'  Imcn  r('(iuir('<],  viz  :  iilitilisii 
fil  Uio   recruitlnL;   eMtiilili.'^iniuiit    iil    Ilitiirax  fur  tiii'   iiiiistinciit  uf  |)urHOiiii 
coming  from  tlie  United  Staf''s. 

JVb<c  rjl. — lliis  letter,  likf?  tlu!  pi-pc(><liii<^  one  from  Mr.  Miircy,  assumes  the 
j^round  of  offence  to  be  tlio  maliint?  of  f(i!itrni'ts  here  to  ^fo  into  tlio  IJrilish 
I'rovinccs,  tin  icto  lie  fnliHleil,  mid  lie.-ay>  Ihiit  on  nrrivint;  tliere  the  particH 
arc  "treated  as  under  obligation  to  perfect  th<ir  enlistiiient." 


25 


tnem.  The  facts  that  thcso  pcrKons  receive  comprvmiion  64 
for  their  engagements,  ii\x\  talccM  to  the  ])rovinci'H  free  of 
charge,  and  there  treated  as  under  ohilijidion  to  perfect  their 
enlistment  in  tlie  British  jtniiy,  sliow  tliat  wliut  lias  licon 
done  in  the  [Jnitcd  States  wan  sot  on  loot  l)y  ihe  lirilish 
officers  in  the  provinces,  and  that  this  sclionie  was  not 
abandoned  after  the  ])resentation  of  Lord  (  larciidon's  note 
of  the  12th  of  April,  IHT)"),  hut  is  continued  down  to  the 
present  time,  and  Ih  prosecuted  with  more  vigor  and  eifect 
than  at  any  previous  period. 

If  an  ajjoloiiy,  grounded  upon  nn  alleged  ignorance  of 
our  haws,  could  he  oHeri'<l  for  introducing  lhi>  sclicnie  for 
recruiting  the  Briti>h  army  hy  men  drawn  iVoiii  the  I'nitcd  G5 
States,  that  excuse  could  not  he  availaii'i'  after  tlie  provi- 
sions of  these  laws  were  iirst  made  known  to  tlio^^e  enyagcd 
in  the  scheme.  "'  *  '^' 

As  recruiting  for  the  British  army,  in  tlie  mode  alluded 
to,  is  still  prosecuted  wilhin  the  I'nited  States  hy  ollicers 
and  agents  employed  for  that  purpose,  the  President  in- 
structs yon  to  say  to  llcr  ^^aicsty^s  (i(»veniment  that  he  ex- 
pects it  will  take  j)ronipt  and  oU'ective  measures  to  arrest 
their  proceedings,  and  to  discharge  from  service  tliose  per- 
sons now  in  it  who  were  enlisted  within  the  L'niteil  States, 
or  who  left  the  United  Sfatcn  u)id<  r  conlrai'tn  iickJ'  Jwre  to  Qg 
enter  and  serve  as  so/di^'rn  in  the  British  tiriKi/. 

These  measures  of  redress  cannot,  as  the  ! 'resident  con- 
ceive?, 1)0  withheld  on  any  other  ground  than  the  assertion 
of  a  right,  on  the  i)art  of  Groat  Britain,  to  i>mi)loy  ollicers 
and  agents  to  recruit  her  nulitary  forces  iriihin  our  limits, 
in  defiance  of  our  laws  and  our  sc-vereign  i-ights.  Jt  is  not 
anticipated  that  any  such  pretext  will  ho  aUeged;  it  cer- 
tainly cannot  he  permitted  to  he  a  suhject  of  discussion. 

The  President  instructs  you  to  present  the  views  con- 
tained in  this  dispatch  tu  Her  Jiritannic  Majesty's  Govern- 
ment. 


26 


67 


Lord  Clarendon  to  Mr.  Buchanan. 


r|.ii 


li 


^' 


Foreign  Office,  July  16,  1856. 

The  undersigned,  Her  Majesty's  rrincipal  Secretary  of 
State  for  Foreign  AtFair^i,  lian  the  lionor  to  acknowledge  the 
recei})t  of  the  note  which  ]\rr.  Jiuchanan,  Fnvoy  Extraor- 
dinary and  Minister  Plenipotentiary  of  the  United  States, 
addressed  to  him  on  the  0th  instant,  respecting  attempts 
stated  to  have  recently  hecn  made  to  enlist,  within  the 
limits  of  the  United  States,  soldiers  for  the  British  army. 

The  mulevsigncd  ni'ist,  in  tlie  first  instance,  express  the 
regret  of  lier  Majesty's  (iovernmont  if  the  law  of  the 
Uniied  States  has  been  in  any  wpy  infringed  by  persons 
68  acting  with  or  without  any  authority  from  tiiem  ;  and  it  is 
hardly  necessary  for  the  undersigned  to  assure  Mr.  Bu- 
chanan that  auvsuch  infringement  of  the  law  of  the  United 
States  is  entirely  contrary  to  the  wishes  and  to  the  positive 
instructions  of  ller  Majesty's  Government. 

The  undersigned,  however,  thinks  it  right  to  state  to  Mr. 
Buchanan  that  some  months  ago  Her  Majesty's  (Government 
were  informed,  from  various  sources,  that  in  tlie  British 
North  American  ]M>ssessions,  as  well  as  in  the  United  States, 
tJuire  were  maioj iiuhjixUnf  the  (Jiictii  who,  from  sentiments 
of  loyaltij,  aivl  laamj  fortit/ners  who,  from  jjolltical  feel- 
ing, were  anxious  to  enter  J/er  Jlojestfs  service,  and  to  take 
part  in  the  war.  Ilcr  jMajesty's  (Government,  desirous  of 
availing  theuiselves  of  the  offers  of  these  volunteers,  adopt- 
ed the  measures  necessary  for  making  generally  hiovm  that 
Her  Majesty's  Government  were  ready  to  do  no,  a7id  for  re- 
ceiving such  2>('rsons  as  should  present  themselves  at  an  ap- 
pointed place  in  one  of  the  British  possessions.  2'he  right 
of  Her  Majesty^'i  (jovernmtnt  to  act  in.  this  way  was  incon- 
testable ;{22)  but  at  the  same  timu  they  issued  stringent 
instructions  to  guard  against  any  violation  of  the  United 
States  law  of  neutrality  ;  the  importance  and  sound  i)olicy  of 
which  law  has  been  so  well  expounded  by  Mr.  Ihicluinan, 
in  whose  remarks  upon  it,  as  well  as  upon  the  foreign  en- 


69 


Note  32. — It  is  not  contested  in  the  previous  letters  fif  Mr.  Marcy  and  Mr. 
Buclianun  but  is  fully  admitted  Ity  iin[)iicalion.  Tlie  denial  of  the  right  is  an 
afterthouglit. 


27 


n 


listmeiit  bill  of  this  country,  Her  Majesty's  Government   70 
entirely  concur. 

It  can  scarcely  be  matter  of  surprise  that  when  it  became 
blown  that  ITer  Majesty's  Government  was  prepared  to  ac- 
cept these  voluntary  oilers,  7iiani/  persons  in  various  quar- 
ters should  give  i/uvusehh's  out  as  agents  employed  hj  the 
British  Governmod^  in  tlio  hope  of  eurniiii^  reward  by 
promoting,  though  on  their  own  responsibility,  an  object 
which  they  were  aware  Avas  favorably  looked  u]>on  by  the 
British  Government,  Tier  Majesty's  (Jovernment  do  not 
deny  that  tlie  acts  and  advertisements  of  thfse  self-consti- 
tuted and  unauthorized  agents  wrre,  in  tnang  instances,  un- 
douhled  violations  of  the  la ui  of  the  I'nited  States  ;  but  such 
persons  had  no  authority  whatever  for  their  })rocueding8 
from  any  British  agents,  by  all  ol"  whom  they  were  promptly 
and  uncfpiivocally  disavo\v(;d.(.'5'>) 

With  respect  to  the  proclamation  by  tlio  Lieutenant- 
Governor  of  Nova  Scotia,  inclosed  in  j\[r.  Buchaiuin's  note, 
the  undersigned  can  assure  Mi-.  Ihichanan,  with  reference 
both  to  tiie  character  of  Sir  CJaipard  Le  Marchant  and  to 
the  instructions  he  received,  as  well  as  to  his  correspondence 
on  these  instructions,  that  that  ollicer  is  (juite  incapable  of 
intentionally  acting  against  the  law  of  the  United  States; 
and  in  proof  that  he  did  not  in  fact  do  so,  tlie  undersigned 
begs  leave  to  i-efer  Mr,  Biielianan  to  the  legal  decision 
given  on  the  particidar  pnint  advei'ted  to  by  Mr.  ]'>uchanan, 
by  Judge  Kane,  nn  the  2lM  of  !\Iay  last,  in  the  I'nited 
States  (Jircuit  (Jourt  at  i'hiladeljihia.  The  Judge  says:  "/ 
do  not  think  that  the  paipmid  (f  the  passage  from  this  coun- 
try if  a  man  mJio  di  sires  to  enli.sl  in  a  foreign  port,  comes 
ivithin  the  act.''  Crhe  neutrality  act  of  181 S,)  " /»  the 
terms  (f  the  jtrintal  pmcl'ttji'divn,  there  is  -nothing  eonjlict- 
ing  loith  the  laws  if  the  United.  Slatts.{p>\)  A  person  may 
go  abroad,  prodded  the  enlistment  be  in  a  foreign  place, not 
having  accei)ted  and  exercised  a  commission.  There  is 
some  evidence  in  llertz's  case  that  he  did  hire  and  retain, 


72 


Note  3:{. — This  is  iictimlly  treiitod  l>y  Mr.  Mnny  (  folio  12S)  us  an  admission 
that  the  authorised  agents  of  the  Uritisii  ({oviTiiiiiciit  liad  violated  tlie  law! 

Note  3-t. — Seo  Mr.  Cu.-iLiug's  argument  coiitru  with  comments  thereon,  post 
folio  218. 


28 


73  and  therefore  liis  case  would  liave  to  bo  submitted  to  a  jury. 
In  Perkins'  case,  there  was  testimony  upon  which  a  jury 
might  convict.  In  Bucknell's  case,  it  appears  that  there 
was  a  conversation  at  M'hicli  he  was  present,  but  there  was 
no  enlistment,  or  hii'ing,  or  retaining.  The  conversation 
related  a'*  to  the  practicability  of  persons  going  to  Nova 
Scotia  to  enlist.  If  the  rule  I  have  laid  down  be  connect, 
then  the  evidence  does  not  connect  him  with  the  misde- 
meanor. Mr.  Biicknell  is  therefore  discharged,  and  Messrs. 
Perkins  and  Hertz  are  remanded  to  take  their  trial." 

74  As  regards  the  proceedings  of  ller  Majesty's  Govern- 
ment, the  undersigned  has  the  honor  to  inform  Mr.  Bu- 
chanan that  Mr.  C'ra:n])ton  was  directed  to  issue  strict  orders 
to  British  Consuls  in  tlie  Ignited  States  to  l)e  careful  not  to 
violate  the  law  ;and  Mr.  Crampton  was  enjoined,  above  all, 
to  have  no  cmccalnu'tit  from  the  (rovcnunent  of  the  United 
StaU'g.{'>\5)  In  the  absence  of  Mr.  C^rampton  fromWashington, 
Iler  Majesty's  Charge  d'Allaires  placed  in  Mr,  Marcy's 
hands  a  dispatch  f 'om  the  undersigned  on  this  subject,  ex- 
pressly stating  that  "ller  Majesty's (xovernincnt  would  on 
no  account  run  any  ri-k  of  infringing  this  (the  neutrality) 

75  law  of  the  United  St;itos." 

Tiie  undersigned  luis,  however,  the  honor,  in  conclusion, 
to  state  to  ]\Ir.  Bnelianan  that  Her  Majesty's  Government 
— having  reasun  to  think  tluit  no  precautionary  measures, 
with  whatever  honesty  they  might  be  carried  out,  could 
effectually  guard  against  some  real  or  ajyparent  infringe- 
ment of  the  law,  which  would  give  just  cause  for  complaint 
to  the  Government  of  the  United  States — determined  that 
all  proceedings  tor  enlistnu-nt  should  be  juit  an  end  to,  and 
instructions  to  that  elfeet  were  sent  out  before  the  under- 
signed had  the  honor  to  receive  Mr.  Buchanati's  note,  as 
the  undersigned  need  hardlv  sav  that  the  advantajjre  which 
Ilor  ^Majesty's  service   might    derive  from   enlistinent  in 


Notn  ;!5. — In  ft  ri'cciit  dcbiitf;  in  tin;  Senate  it  was  coiitondeil  by  one  of  the 
Scnutui-s  that  the  fact  that  Mr.  (Jt'ani|itou  coirosponclecl  by  telegraph  witli 
various  persons  in  cipher  was  conclusive  proof  that  lie  was  concealing  some- 
thing from  the  Government  of  the  United  States,  as  if  he  were  bound  to  let 
uli  the  details  of  his  correspondence  be  known  to  the  clerks  of  the  telegraph 
pfficcs  ! 


29 


Korth  America  would  not  be  sought  for  by  Her  Majesty's  76 
Government,  if  it  were  supposed  to  be  obtained  in  disre- 
gard of  the  respect  due  to  the  law  ofthe  United  States.  (36.) 


Mr.  Marcy  to  Mr.  Crampion. 

Depaijtmknt  of  State,  ) 

Washington  September  5,  1855.  \ 

Sir, — Having  ascertained  that  the  scheme  to  raise  recruits 
for  the  British  army,  within  the  limits  of  the  United  States, 
was  vigorously  prosecuted  after  our  first  conversation  on  the 
subject,  and  that  officers  of  Her  J>ritannic  Majesty's  Go- 
vernment were  taking  an  active  part  in  it,  notwithstanding 
the  disapi)robation  of  tliis  (loverumont  was  well  known,  the   77 
President  directed  Mr.  Ihichanan,  the  L'nited  States  Min- 
ister at  London,  to  he  instructed  to  bring  the  subject  to  the 
attention  of  Lord  Clarendon,  Her  Majesty's  Trincipal  Sec- 
retarv  of  State  for  Forei<irii  Atfairs.     Lord  Clarendon,   in 
his  replv  to  ^fr.  Buchanan's  note  to  him  ofthe  6th  of  July 
last,  admits  that  Her  Majedijs  Government  did  concur  in 
and  axithorhe  some  measures  to  he  tal'en  to  introduce  per- 
sons resident  in  the  United  States  into  the  British  army ; 


Note  80.— Tlie  Briti.sli  Govoriiment  .i,mvo  up  nil  tuustmonls  witliin  tho 
Britisli  tloiiiinioiis  in  Nortli  Aineiicii  ot"  pe  rsuiis  coming  from  the  United  Mates 
rather  than  leave  any  chanee  open  for  cau  ^sof  complaint  on  the  part  of  this 
CJovoinment.  This  wiia  nn  unadvised  act,  the  spirit  in  whieh  it  was  conceived 
was  misinterpreted  bv  Mr.  .Marcy  wliotro;  itedllie  concession  ns  an  exhibition 
of  weakness  and  as  an  acknowlediiement  t.  lat  tlie  British  Crovernment  liad  no 
right  to  enlist,  even  within  the  British  dom  inions,  such  persons  as  had  been 
invited,  persuaded,  or  induced  to  leave  thc^  United  States  for  the  purpose  of 
enlisting  themselves.  Mr.  Marcy  conse.piei  tly  presented  a  new  bill  of  Indict- 
ment against  the  British  (Jovcrmneiit,  and  ji  sisted  on  tluir  pleading  guilty  to 
it.  On  the  other  hand,  Lord  Clarendon  was  suri)rised  at  the  turn  the  aftair 
had  taken— lie  had  expected  that  the  AmerL  ans  would  readily  acknowledge 
that  he  had  iimdo  a  Hacritice  of  uudtmbted  rig  hts  for  the  purpose  of  securing 
their  moral  suppcrt  ami  sympathy  in  tlie  war  against  Russia,  when  lo  and 
behold,  he  UlBCovers  that' they  take  him  as  U  ving  admitted  that  they  bad 
uot  olaiuiQci  enough  Jo  Ihepreviom  correspot\\i»   "C^- 


Jt 
:  'If: 


80 


78  (37)  but  places  the  justification  of  the  proceedings  thus  autho- 
rized upon  the  narrow  ground  tliat  "  stringent  instructiona" 
were  issued  to  the  British  officers  and  agents  to  guard  against 
any  violation  of  the  United  States  law  of  neutrality  ;  and 
his  Lordship  expresses  a  confident  opinion  that  these  instruc- 
tions havo  heen  scriii)ulously  observed.  He  is  fully  aware 
that  volunteers  have  embarked  in  the  scheme,  who  have 
violated  our  laws.  Tiiough  it  was  anticipated,  as  he  con- 
fesses, tliat  such  volunteers,  assuming  to  be  agents  of  Her 
Majesty's  Government,  woukl  take  a  part  in  carrying  outthe 

79  antliorized  scheme  of  drawing  recruits  from  the  United 
States,  and  woukl  be  likely  to  infringe  our  laws ;  yet,  as 
they  were,  as  ho  alleges,  self-constituted  and  unauthorized 
agents,  he  assumes  that  no  res[)onsil)illty  for  their  conduct 
attaches  to  Her  Majesty's  Government  or  its  officers. 

1)1  aHihoriziiKj  (I  pla)h  nf  j'lcrvUincnt  \\\\\c\\  was  to  be 
carried  out  in  part  witliin  our  territories,  the  British  Go- 
vernment seems  to  have  forgotten  that  the  United  States 
had  sovereign  rights,  as  well  as  municipal  laws,  whitdi  were 
entitled  to  its  respect.  For  very  obvious  reasons,  the  officers 

80  employed  by  Her  Majesty's  (government  in  raising  recruits 
from  the  United  Stales  would,  of  course,  be  cautioned  to 
avoid  exposing  themselves  to  the  penalties  prescribed  by 
our  laws;  but  the  United  States  had  a  right  to  expect  some- 
thing more  than  precautions  to  evade  those  penalties  ;  they 
had  a  right  to  expect  that  the  government  and  officers  of 
Great  Britain  would  regard  tliCjyoUcy  indleatedbi/  these  laics, 
and  respect  our  sovereign  rights  as  an  independent  and 
friendly  ])Ower, 

It  is  evoeediu'jhj  io  he  regretted  that  this  international  as- 
pect of  the  cxse  teas  overlvohed.     As  to  the  officers  of  the 


Nole  .';7. — Here  wo  liave  tlio  fruits  of  Lord  Clarendon's  abundoninent  of  en 
lisltneiitB  at  HiUifiix.  (seo  ante  note  3Ci.)  Mr.  Murcy  now  dt'nies  tlie  right  of 
the  Ihitisli  (lovrriiiioiit  to  authoiise  any  "  nieasure-i  to  bo  taken  to  introduce 
persons  vosidt-nt  in  the  I'nited  States  into  tiie  British  army."  Any  invita- 
tion, ior  example,  to  the  English  rosidentsi  in  the  United  States  to  ro  fo  Cana- 
da and  enlist  is  "a  plm  of  recruitment,"  to  be  carried  out  in  part  in  the 
United  States.  It  is  now  discovered  that  tliia  would  violate  the  "policy 
indicated"'  by  the  Act  of  Congress  aiu'  would  moreover  be  a  violation  of  inter- 
national law.  We  hear  no  more  about  contracts  made  to  go  abroad,  but  the 
complaint  ia  as  to  "drawing  recruits  from  this  country," 


31 


British  Government,  it  is  not  barely  a  question  whether  tliey  81 
have  or  have  not  exposed  themselves  to  the  penalties  of  our 
laws,  but  vjhether  they  have  in  their  i^roceediniiH  violaledin- 
tcrnational  law  and  ofei  ed  an  a  front  to  the  sovereigiitii  <>fthe 
United  States.  As  functionaries  of  a  foreign  government, 
their  duties  towards  this  country  as  a  neutral  and  sovereiun 
power,  are  not  prescribed  by  our  legislative  enactments, 
but  by  the  lata  of  nations.  In  this  respect,  .heir  relation  to 
this  government  differs  from  that  of  private  persons.  Jlad 
there  been  no  acts  of  Coiigi'css  on  the  subject,  foreign  go- 
vernments are  forbidden  by  that  law  to  do  anything  which 
would  in  any  manner  ^>^;^  to  hazard  our  2)osiiio)i  of  neutral-  S2 
itij  in  respect  to  the  belligerents.  iW^.') 

The  information  which  hasbfc::n  laid  before  the  President 
has  convinced  him  that  the  proceedings  resorted  to  for  the 
purpose  oi  drawing  reeruits  from  this  country  for  the  Bri- 
tish army,  have  been  instigated  and  carried  on  by  the  active 
agency  of  British  oflicers,  and  that  their  parlicii)ation  there- 
in has  involved  them  in  the  double  offence  of  infringing  our 
laws  and  violating  our  sovereign  territorial  rights. 
*  *  ■:<■  » 

Tliocase  ''  which  the  United  States  feel  hound  to  present 
to  Her  Majesty's  Government,  involves  considerations  not 
embraced  in  Lord  (Marendon's  reply  to  Mr.  I^iichaiian's 
note.  The  question  is  not  whether  that  government  has 
authorized,  or  any  of  its  oflicers  have  done  acts  for  which 
the  punishment  denounced  by  our  laws  can  be  inflicted, 
but  tohether  they  partiei/>afed,  i/i  any  foroi  or  manner, 
in  proceed  ings  contrary  to  international  I  a  to  or  derogatory 
to  our  natiomd  sovereignty.  It  is  not  now  necessary,  there- 
fore, to  consider  what  technical  defence  these  othcers  might 

interpose  if  on  trial  for  violating  our  numicipal  lav;s. 
*  *  *  * 

(Mr.  Marcy  informs  Mr.  Crampton  that  the  disclosures 
implicate  him.  lie  says  that  the  arrangements  made  "  are 
\itterly  incompatible  with  any  pretence  that  they  were  de- 
signed merely  to  afford  facilities  to  British  subjects  or  other 
foreignors  in  this  country  to  carry  out  their  wishes,  prompt- 


83 


84 


Note  38.— See  note  22  and  post  folios  252  to  256,  288,  318. 


S5  ed  purely  by  "  sentiments  of  loynlty"  or  "  political  feeling,'* 
to  participate  with  the  Allies  in  the  existing  war  in  Europe.)" 
The  course  which  the  President  would  deem  it  proper 
to  take,  towards  tho  implicated  officers  within  tlio  United 
States,  depends,  in  some  measure,  upon  their  relation  to 
their  government  in  this  matter.  Lord  Clarendon's  note 
of  the  16th  of  July,  does  not  make  it  quite  clear  that  Her 
Majesty's  Government  is  prepared  to  disavow  tho  acts  com- 
plained of  and  to  throw  the  entire  responsibility  of  them 
upon  its  officers  and  agents.  "  Stringent  instructions"  were 
undoubtedly  given  to  Her  Majesty's  officers  "  to  guard 

gg  against  any  violation  of  the  United  States  law  of  neu- 
trality ;"  but  it  docs  not  appear  that  r('.y)fief,  for  our  f^rrito- 
riil  sovei't'igiiti/,  or  the  well  liiown  policy  of  the  United  States 
as  a  neutral^  not  specifically  embraced  in  our  municipal  en- 
actments, was  enjoined.  The  instructions  might  therefore 
ha  formally  co)nj)lied  with,  and  their  q/Kcer,s,  at  the  same 
time,  do  acts  which  constitute  an  offence  against  our  rights 
OS  a  sovereign  power.  Such  acts,  it  is  believed,  they  have 
committed  ;  whether  with  or  without  the  ai)proval  or  coun- 
tenance of  their  government,  does  not  authoritatively  ap- 
pear. *  *  * 

The  object  of  this  note  is  to  ascertain  how  far  the  acts  of 
the  known  and  acknowledged  agents  of  the  British  goveni- 

87  nient,  done  within  the  United  States,  in  carrying  out  this 
scheme  of  recruiting  for  the  British  army  have  been  autho- 
rized or  sanctioned  by  Her  Majesty's  Government.(39) 


l\    ' 


Mr.  Crampton  to  Mr,  Marcy, 

Washington,  Sept.  7, 1855. 
Sir, — I  have  the  honor  to  acknowledge  the  receipt  of  your 
note  of  the  5th  instant,  upon  the  subject  of  alleged  re- 
cruitments in  the  United  States  of  soldiers  for  the  British 
army. 


Note  39. — Compare  this  question  (which  opens  up  \  new  discussion,)  with 
that  put  in  Mr.  Buchanan's  letter  of  July  6tfa,  (folio  60)  and  see  commeata 
thereon,  ante  note  36. 


1^14^ 


33 


As  your  note,  although  addressed  to  myself,  refers  in  a  88 
great  measure  to  a  (correspondence  which  has  taken  place 
between  Lord  Clarendon  and  Mr.  iiuclianan,  on  the  same 
subject,  I  have  thought  it  expedient  to  defer  reply;""  at 
length  to  your  present  communiciition,  until  T  shall  .  ^ve 
been  more  fully  put  in  possession  of  the  views  of  Her  Ma- 
jesty's Government,  in  regard  to  all  tiio  matters  to  which 
it  relates. 

I  shall  tlien  do  myself  the  honor  of  addressing  to  you  a 
further  communication  ;  and  I  confidently  trust  that  I  shall 
be  enabled  altogether  to  remove  the  unfavorable  impres-  89 
sion  which  has  been  created  as  to  the  motives  and  conduct 
of  Her  Majesty's  (Tovernment,  and  their  officers,  including 
myself,  in  regard  to  this  matter.     (40.) 


Mr.  Marcy  to  Mr.  Buchanan. 

Dki'Artmknt  of  State,      ) 
Washington,  Sept.  8,  1855.  f 
»  *  *  -X-  *  * 

Lord  Clarendon  must  have  been  misinformed  as  to  the 
actual  state  of  things  here,  when  he  assured  you  that  the 
persons  who  had  violated  our  neutrality  law  were  self  con- 
stituted and  unauthorized  agents.  If  the  British  Govern- 
ment choose  to  take  ])ains  to  ascertain  what  disposition  has 
been  made  of  the  large  sums  of  money  expended  in  carry- 
ing out  the  scheme  of  enlistinenis  hi  this  country,  it  will 
find  that  a  considerable  amount  of  it  hasgone  into  the  hands 
of  tfieac  agents,  (41)  and  that  it  was  paid  to  them  for  the 


90 


Note  40. — The  corrL'spoiuIenci-  hithorto  publislunl  closes  with  Mr.  Marcy's 
letter  of  Deccnilter  28tli,  18,')5.  It  is  piosumed  tliiit  Mr.  Crampton'a  further 
communication  ami  Lord  Clarendon's  reply  to  Mr.  Marcy  have  been  since  re- 
ceived. 

A'o/*41. — No  money  had  b(!eii  expended  njion  "  enlistments  in  this  country," 
but  doubtless  eoiisideralile  sums  had  been  paid  I'V  the  Britisli  authorities  to 
agents  here  "  for  the  purpose  of  being  expended  in  the  United  States"  in 
giving  information  and  assistance  to  persons  to  go  to  the  British  Provinces  who 
intended,  on  arriving  there,  to  become  reeruits  for  the  British  military  ser. 
vice,  but  properly  speaking,  no  money  was  expended  in  "raising  recruits"  in 
the  United  States. 


84 


91  purpose  of  beinjaj  expended  in  the  United  States,  in  raising 
recruits  for  the  British  military  service. 


Lord  Clarendon  to  Mr.  Buchanan. 

FoKKioN  Office,  Sept.  27,  1866. 
(Lord  Clarendon  says  lie  had  hoped  that  his  previous  ex- 
planations and  aMsuraiices  would   have  hocn  satisfactory. 
Referring  to  Mr.  Marey's  letter  to  Mr.  Crajupton,  of  Sept. 
6,  1855,  Lord  Clarend(»n  says  :) 

"  In  thir<  letter,  Mr.  Marcy,  laying  less  stress  than  Mr. 

9*^  Buchaniin  did  upon  the  alleged  intVaclinu  of  the  municipal 
laws  of  the  riiited  J'<tafes,  dwells  ehiefly  ui)on  the  point 
which  was  but  slightlv  adverted  to  hv  Mr.  JJuchanan,  of 
an  a'^suiiied  disregai'd  of  the  sovereign  rights  of  the  United 
States  on  the  ])art  of  the  British  authorities  or  tiio  agents 
employed  by  them. 

'*  Her  Majesty's  (Tovernment  have  no  reason  to  believe 
that  such  has  been  the*  conduct  of  any  persons  in  the  em- 
ployment of  ITer  IVIaje-ty,  and  it  is  needless  to  say  that  any 

93  person  !io  enijtloyed  would  have  (h'parted  no  less  from  the 
intentions  of  Her  Mnjesty's  (ioveri.Mcnt  by  violating  inter- 
national law,  or  by  otfering  an  atiVont  to  the  sovereignty  of 
the  United  States,  than  by  infringing  iJie  municipal  laws  of 
the  Union,  to  which  Mr.  J >uchanan  more  particularly  called 


the  attention  of  the  undersiijned 


* 


* 


* 


# 


Oroat  dexterity  is  on  iiict'il  by  Mr.  Marcy  in  tlie  latter  part  of  this  corres 
ponck'iiot!  in  the  clKiioc  of  a  variety  i>{  obscure  or  uinbif^uous  expressions 
eiich  ui  "  this  sclieiiK'  of  reci'iiitintf,"  "  raising  recruits  for  the  Britisli  military 
service,"  "drawititr  recruits  from  tlie  United  States,"  "drawing  military 
forces  from  our  territory,"  "  recniitiiifj  in  tlie  United  States,"  "inducements 
offered  by  recruiting  agents  here,"  itc,  itc,  ttc. 

Tliese  expressions  may  refer  only  to  the  exercise  of  the  right  claimed  by 
the  British  Government  to  invite,  persuade,  or  assist  men  in  the  United  States  i 
to  go  to  the  Rritisli  provinces  and  there  to  enlist  them,  or  may  be  intended  to 
express  a  totally  ditferent  meaning,  /.  e.  that  men  were  enlisted  here,  or  that 
the  British  agents  contracted  unlawful  engagements  here.  But  all  this  ma- 
noeuvring is  of  no  avail,  the  merits  of  the  discussion  can  neither  be  smothered 
by  u  mass  of  words  nor  mystified  by  special  pleading. 


35 

(TiOrd  ClarGndon  alliuloa  to  tlio  cxtraorflinnrv  in  ^iiures   0 
which  have  been  adopted  in  viiriniiH  parts  of  tlio  T'nion,  to 
obtain  evidence   ajcjaiiiHt  llor  Ariijcsty's  servants   (tr  thoir 
agents.      And  rclerring  to  tho  noutriility  professed  by  the 
United  States,  lie  says :) 

The  United  States  profess  noiitr.'ility  in  tlic  jn-csent  war 
between  tho  Western  I'owers  and  liiissia  ;  but  liavo  no  acts 
been  done  witliin  tlio  Initod  States,  by  citi/eiis  tlioreof, 
which  accord  little  witli  tho  spirit  of  neutrality  if  JIavo 
not  arms  and  anitniinition,  and  warlike  stores  of  various 
kinds,  ])een  sent  in  largo  (juaiitilies  from  tlio  United  States 
for  tho  service  of  Itussia^  llavi^  not  plots  been  openly  ng 
avowed,  and  consi)iraoioa  entered  into  w  itliout  disi^qiise  or 
hindrance,  in  various  ]»iirts  of  the  Cnion  to  lake  advunta"-e 
of  the  war  in  whieh  (rreat  Ih-itain  is  enua^ed,  arid  to  siiize 
the  opportunity  forprojnotin;,'  insuiTeelion  in  Her  Majesty's 
dominions,  and  tho  invasion  thereof  by  an  armed  foreo  pro- 
ceeding from  the  United  States  f 

(Lord  Clarendon  adds  that   Her  jMajesty's  Government 
would  not  have  adverted  to  the  execptional  course  pursued 
by  a  certain  number  of  individuals,  if  it  had  not  been  for   9^ 
the  statements  in  Mr.  Marey's  note.) 


J//'.  Marcy  to  Jfr.  Buvhanan. 

DkI'AUTMFN  (•'   SlATE,         ) 

Washington,  O^i.   J,  1855.) 

I  herewith  send  you  pa[)ers  containing  tho  report  of 
tho  trial  of  llortz,  for  a  violation  of  our  neutrality  laws 
by  enlisting  soldiers  lor  the  British  army. 

The  testimony  shows  that  Mr,  ('rampton  and  several 
other  British  officials  are  dee[)ly  iniplicatnJ  in  the  transac- 
tion. Lord  Clarendon's  note,  in  answer  to  yours,  bringing 
tho  subject  to  his  notice,  assumed  that  none  of  Iler  Majesty's 
officers  had  been  in  any  way  evigagcul  in  the  plan  of  recruit- 
ing in  the  United  States.     (42.)    Had  the  facts  been  as  he 


Note  42. — Lord  Clarendon  does  not  assume  "  tbnt  none  of  tier  Mnje9t}-'9 
officers  had  been  in  any  way  engaged  in"  a  plan  of  recruiting  by  which  men 


se 


r 


97  asflumed  tliem  to  bo,  and  tliis  Government  had  no  reason 
to  believe  that  the  measure  was  not  designed  to  draw  rt- 
oruit^  from  the,  United  tStatcs,  his  Loi'dBiiij>'8  reply  would 
have  been  flatiHlactory. 

Subso(j[ueiit  developments  show  that  Lord  Clarendon  was 
misinformed  as  to  the  true  Htato  of  the  case. 

Tlie  second  dispatch  on  the  subject  showed  that  the 
ground  of  grievance  was  not  contined  to  the  mere  fact 
of  a  violation  of  our  neutrality  laws  by  British  officers.  It 
presented  the  case  as  a  national  ott'ence  committed  by  them, 
irres])ectivo  of  tliose  laws.  J'/**."*:  nfficers  maij  have  con- 
trived to  s/iif'/d  t/wnisi'/wM  front  the  penalties  of  our  laws, 
and  yet  hire  committed  an  off*  nee  a(jaind  our  sovereign 

9g  territofiid  ri<jhif(.  (43.)  This  latter  aspect  of  the  case  was 
distinctly  ])re8ented  in  my  last  dispatch  to  you  on  the  sub- 
ject. It  was  this  view  of  the  case  which  the  President 
wished  you  to  present  to  her  Majesty's  Minister  of  Foreign 
Helations. 


^,,^.^ 


Mr.  Marcy  to  Mr.  Buchanan. 

Department  of  State,         [ 
Washington,  Oct.  13,  1855.    ) 

(Mr.  Marcy  reiterates  the  charges  against  the  agents  of 
the  British  Government,  and  rej)liesto  the  remarks  in  Lord 
Clarendon's  letter  of  September  27,  1855.) 


were  to  be  persiiadt'd  nnd  nsfiisted  to  lenvo  tlie  U.  S.,  to  become  recruits  in 
the  Britisli  provinces.  In  one  sense  that  may  be  called  drawing  recruits 
from  the  U.  S.,  although  the  men  did  not  become  recruits  whilst  in  the  U.  S. 
That  "  plan  of  recruiting"  and  that  mode  of  "  drawing  recruits  from  the  U.  S." 
was  not  disavowed  by  Lord  Clarendon.  If  Mr.  Marcy  referred  to  other  plans 
and  modes  of  proceeding,  he,  and  not  Lord  Clarendon,  was  "  misinformed  as 
to  the  true  state  of  the  case." 

Note  43. — Sec  on  this  question  ante  fo.  14,  notes   17,  30,  36,  and  post  to. 
246  et  seq. 


11:.. 


37 


Mr.  Buchanan  to  Mr.  Marcy. 

LeoATFON  of  tick  flNlTFO  StATEA,  | 

liondon,  iS'ov.  ti,  1^55.  f 

Mr.  l^icl)anQn,  nftor  stating  that  lu»  luul  nmd  to  Lord 
Clarendon  the  last  dispatch  from  Mr.  Marry,  adds  : — 

"  I  then  tatod,  his  Lordrthip  woidd  ohscrvo  that  the  Go- 
vornmcMit  ut'tho  Unitod  Slates  had  two  causoH  of  foinplaint; 
tlio  one  was  such  viohitions  of  our  neutrality  laws  as  niii^dit 
he  tried  atul  }>unishod  in  the  courts  of  the  Unitod  States; 
the  other,  to  wliich  I  especially  desired  tu  direct  his  atten- 
tion, consisted  in  a  violation  of  our  neutrality,  under  the 
general  law  of  nations,  by  the  attempts  which  had  hoen 
made  by  iiritish  otl^ieors  and  agents,  nut  jmnlshatjlc  under 
our  munin])al  lau^to  (traiv  ni ilitanj^  forty ><  from,  our  territory 
to  recruit  their  armies  in  the  Crimea.  (44)  As  examidesof 
this,  I  passed  in  review  the  conduct  nf  Mr.  Crampton,  of 
the  Lieutenant-Cfovernor  of  Nova  Scotia,  and  the  British 
consuls  at  Now  York  and  I'hiladelphia.' 


99 


100 


Lord  ClarcJidon  to  Mr.  Cranvpton. 

FoRKiGN  Offick,  Xov.  16,  1855. 
(Lord  Clarendon  observes  that  llcr  Majesty's  Clovennnent  jqj 
had  not  doubted  that  the  frank  expression  of  their  regret 
for  any  violation  of  the  I'nited  States  law,  which,  contrary 
to  their  i.:.5iruciioi.s,  might  have  taken  place,  and  of  their 
determimition  to  remove  all  cause  for  further  com]tlaint  by 
puttingau  end  tc  all  proceedings  for  enlistment,in  the  British 
provinces  would  have  satisfactorily  and  honorably  terminat- 
ed a  ditFerence  between  two  governments  whoso  duty  it 


I      I 


NoU  44. — No  "  mil  itanj  forces"  were  drawn  from  the  I  J.  S.  to  rocruit  the 
British  forces  in  the  Crimea.  Some  aliens  resident  in  the  U.  S  having  learned 
that  they  could  fight  against  Russia,  went  from  the  U.  S.,  as  they  had  a  per- 
fect right  to  do,  and  accepted  the  invitation  of  the  British  authorities  in  Nova 
Scotia  to  enlist  in  the  British  army.  Mr.  Buchanan  calls  this  the  drawing  of 
"  military  forces  from  our  territory,"  oa  if  the  emigrants  had  become  soldiers 
ia  the  U.  S. 


88 


^'■'■: 


In 


102  was  to  maintain  the  friendly  relations  which  have  hither- 
to, and  to  tlieir  great  reciprocal  advantage,  happily  subsisted 
between  Great  Britain  and  the  United  States.) 

"  It  appears  that  two  distinct  charges  are  made  against  the 
officers  and  agents  of  Her  Majesty's  Government: — 

First — ^Tliat  they  have  within  the  United  States  territory 
infringed  :he  United  States  la^v ;  and,  secondly,  that  they 
have  violated  the  sovereign  territorial  rights  of  the  United 
States,  by  being  engaged  "  in  recruiting  "  for  the  British 
army  within  the  United  States  territory. 

103  Now,  with  respect  to  both  these  charges,  I  have  to  observe 
that  the  information  possessed  by  Her  Majesty's  Govern- 
ment is  imperfect,  and  that  none  of  a  definite  character  has 
been  supplied  by  the  dispatches  of  Mr.  Marcy,  inasmuch 
as  no  individual  British  officer  or  agent  is  named,  and  no 
particular  fact  or  time  or  place  is  stated  ;  and  it  is  therefore 
impossible  at  the  present  to  know  either  who  is  accused  by 
Mr.  Marcy,  or  what  is  the  chai'ge  he  makes,  or  what  is  the 
evidence  on  which  he  intends  to  rely."  (45) 


104 


* 


* 


"With  reference  to  the  second  charge  made  by  Mr.  Marcy 
—  namely,  that  of  "  violating  the  sovereign  territorial 
rights  of  the  United  States,  by  recruitinfij  for  the  British 
army  within  their  territories  "  :  I  have  to  observe,  that  apart 
from  any  municipal  legislation  in  the  United  States  on  the 
subject  of  foreign  enlistment,  or  in  the  entire  absence  of 
any  such  legislation.  Great  Britain,  as  a  belligerent  nationl 
would  commit  no  violation  of  the  "  sovereign  territorial 
j^Qg  rights  of  the  United  States,"  simply  by  enlisting  as  sol- 
diers, within  British  territory,  persons  who  might  leave  the 
United  States  territory  in  order  so  to  enlist.  The  violation 
alleged  is  the  recruiting  within  the  United  States ;  but  to 
assume  that  there  was  in  fact  any  such  "  recruiting,"  (that 
is,  hiring  or  retaining  by  British  officers,)  is  to  beg  the 
question.  (46) 

Note  45. — Mr.  Marcy  in  his  next  letter,  after  arguing  that  Lord  Clarendon 
had  no  right  to  inquire  for  these  particulars  (folios  142  to  14C),  does,  for  the 
first  time  moke  some  specific  charges  (folios  159  to  186),  the  answer  to  which 
has  not  yet  been  published. 

Note  46. — That  is  precisely  what  is  done  throughout  the  correspondenc*- 
aiace  Lord  Clarendon's  letter  of  July  16th,  1865. 


89 


It  appears  to  Her  Majesty's  Government  that,  provid-  105 
ed  no  actual  "  recruiting  "  (that  is,  enlisting  or  hiring,) 
takes  place  within  the  United  States,  British  officers 
who,  within  the  United  States  territories,  might  point 
out  the  routes  which  intending  recruits  should  follow,  or 
explain  to  them  the  terms  upon  which  they  would  be  ac- 
cepted, or  publish  and  proclaim  such  terms,  or  even  de- 
fray their  travelling  expenses,  or  do  similar  acts,  could 
not  be  justly  charged  with  violating  such  sovereign  ter- 
ritorial rights.  (47)  It  has  been  legally  decided  in  the  United 
States  that  the  payment  of  the  passage  from  that  conn, 
try  of  a  man  who  desires  to  enlist  in  a  foreign  port,  does  1^^ 
not  come  within  the  neutrality  law  of  the  United  States, 
and  that  a  person  may  go  abroad,  provided  the  enlist- 
ment be  in. a  foreign  place,  not  having  accepted  and  exer- 
cised a  commission. 

It  would,  indeed,  be  a  violation  of  territorial  rights  to 
enlist  and  organize,  and  train  men  as  British  soldiers, 
within  the  United  States  (48) ;  and  whether  or  not  this  has 
been  done  by  British  authority,  is  the  question  involved 
in  the  first  of  Mr.  Marcy's  charges.  But  it  is  decidedly  no 
violation  of  such  r'ujhts  to  persuade  or  tc  assist  men  107 
merely  to  leave  the  United  States  territory,  and  to  go  into 
British  territory,  in  m'der,  when  they  arrive  there,  either  to 
be  voluntarily  enlisted  in  Bntish  service,  or  not,  at  their 
own  discretion.  (4i>)  There  can  be  noipiestion  that  the  men 
who  went  to  Halifax  were  free,  and  not  compelled  to  be 
soldiers  on  their  arrival.  (50)  Upwards  of  (me  hundred  Irish- 
men, in  one  body,  for  instance,  if  Her  Majesty's  Govern- 
ment are  rightly  informed,  refused  to  enlist  on  arriving 
there,  and  said  they  came  in  order  to  work  on  a  railway. 


(        V 


Note  47. — See  on  this  (juestion  notes  1,  30,  30,  37, 

Note  48.— See  ante  fo.  '29. 

Note  49. — See  note  1  and  fo.  il94. 

Note  50.— This  is  a  roply  to  timt  part  of  Mr.  Marcy's  letter  (ante  folio  50) 
where  he  says  that  contracts  are  mailc  with  persons  to  go  into  the  British 
provinces,  tiieru  to  complete  their  enrolment  in  the  British  army,  and  that 
Buch  persons  "  are  taken  to  thf  provinces  free  of  charge,  and  there  treated 
»»  under  obligation  to  perfect  their  ciiliatmeut." 


40 


.■3 
1l 


108  They  were,  therefore,  not  enlisted,  hired  or  retained  as  sol- 
diers in  the  United  States ;  no  attempt  was  made  to  enforce 
against  them  any  such  contract  or  engagement. 

Mr.  Marcy  cites  no  authority  fur  the  position  he  has  as- 
sumed iti  relation  to  this  jxirticular  doctrine  of  the  effect  of 
foreujn  enlistment  on  socereiyn  territorial  rights  /  but  the 
practice  of  nations  has  been  very  generally  adverse  to  the 
doctrine,  as  proved  by  the  numerous  instances,  in  which 
foreign  troops  luivo  been,  and  still  are,  raised  and  em- 
ployed. (51) 

It  cannot,  therefore,  be  said  that  Mr.  Marcy's  doctrine  is 

109  in  accordance  with  tlie  general  practice  of  nations ;  and 
high  authority  might  be  (juoted  directly  adverse  to  any 
such  doctrine  as  a])plieable  to  free  countries,  "  \d)i  civitas 
non  career  est.''''  lint  even  admitting  the  alleged  doctrine 
as  to  the  bearing  of  the  principle  of  territorial  sovereignty, 
its  application  nuist  obviously  be  subject  to  many  limita- 
tions in  practice. 

Her  Majesty  had  (for  instance)  internationally  em  un- 
questionable right  to  recall  to  her  standard,  displayed  upon 
her  oion  territory  those  (f  her  own  subjects  cajmhle  of  bear- 
ing arms,  who  might  be  transiently  or  temporarily  resident 

110  in  ei foreign  country,  and  Her  Majesty  would  not  therel)y 
incur  any  risk  of  vi(»lating  the  "•  territorial  sovereignty"  of 
such  country.  Again,  in  tlio  case  of  political  refugees 
driven  from  their  own  country,  an  essentially  migratury 
cl."8s,  owing  a  merely  local  and  qualifed  allegiance  to  the 
Lnital  States,  \<, '\i  Xo  be  eiMitended  tluit  to  induce  such 

persons  hy  any  fair  m.eans  short  of  "  hiring''''  or  enlisting 
them  to  leave  the  United  States  in  order  to  '\rol  themselves 
on  British  territory,  as  volunteers,  in  a  war  in  v.liich  many 
of  them  feel  the  strongest  and  the  most  natural  desire  to 
engage,  is  to  violate  the  territorial  sovereignty  of  the  Unit- 
ed States  ?(r)2) 


Note  61.— Sec  unte  note  47  and  post  folios  'ifi'i  to  250,  288.  313. 

Note  52. — See  Mr.  Mniry's  r('|)ly  (t'olio  132).  He  is  like  a  zealous  young 
advoiat"  condnctinL'  a  case  in  a  County  Court,  unwilling  to  admit  anything, 
even  the  nio«t  obvious  fact  or  propositiou  of  law.  In  the  first  place  Mr. 
Marcy  assunieB,  that  Great  Britain  would  be  violating  "tl.e  sovereign  righfd 
of  the  U.  8.,  if  she  were  to  enlist,  hire,  or  engage  as  BokMers,  within  the 


41 


It  18,  of  course,  coirij  otent  to  any  nation  to  enact  a  mu-  111 
nicipal  law,  such  asactnally  exists  in  many  countries,  forbid- 
ding its  subjects  to  leave  its  territory,  l»iit  in  sncli  cases 
"  clvitas  career  cd  ;"  and  it  may  l)e  the  duty  of  other  conn- 
tries  to  abstain  from  actively  assisting  the  captives  to  escape 
from  tlie  national  prison  in  order  to  serve  another  master. 
But  the  Govermnent  of  the  TT^nited  States  has  enacted  no 
such  law  :  it  justly  boasts  of  its  conipletr  freedom  In  this 
respect,  ^^  clvitas  non  career  est '^^  all  residents  therein, 
whether  foreigners  or  citizens,  are  i)erfeclly  free  to  leave  its 
territory,  without  the  pernussion  of  the  g<tverinuent,  at 
their  own  absolute  discretion,  find  to  enter  the  service  of  112 
any  other  state,  when  once  within  its  frontier.  To  imnte 
theiri  or  persuade  tltem  to  do  vilnd  is  thus  lauiful.enn  con- 
stitute no  violation  of  the  territorial  rights^  which  the  sove- 
reign power  has  never  claimed  or  exercised. (r)3) 

It  is,  moreover,  to  be  observed  that  in  this  case  no  Unit- 
ed States  citizens,  as  far  as  Ilc'r  Majesty's  (iovernnient  are 
aware,  were  engaged  ;  but  those  actually  enlisted  wilhin 
the  British  North  American  }tr(»vinces,  and  those  expected, 
were,  to  the  best  of  our  l.ielief,  exclusively  foreigners,  and 
not  citizens  of  the  United  States.(54) 


British  territory,  poraons  who  iia\ »'  Id't  tlie  U.  S.  for  tlmt  inirpuse,"  if  a  law 
of  tlie  U.  S.  sliould  proliibit  their  so  leaving!  Secondly.  That  Cireat  Britain 
would  be  violating  liiturnational  law,  by  enlisting  within  her  lioniiiiions  per- 
sons who  have  been  enticed  away  from  this  country  by  tempting  offers  of /(/i/A 
wages,  Ac.  See  this  novel  and  mniistrou-*  doctrine  coniniLMited  on  (notes  3t), 
36,  37,  65,  folio  296.) 

Note  53. — Lord  Clarendnn  in  saying  that  tlie  eilizen  is  in  a  prison  when  he 
is  not  allowed  to  leave  his  country  does  not  mean  to  say  the  same  of  n  citizen 
who  is  allowed  to  go  when  and  wliere  ho  jjleases,  although  he  may  not  be 
alloweii  to  serve  in  a  foreign  army.  In  Knglnnd  tho  sulijeot  is  (piite  at 
liberty  to  emigrate,  yet  he  cannot  throw  off  his  allegianct;,  neither  is  he  allowed 
to  enter  into  the  military  service  of  another  power  (see  fos.  5,  41, '2"<2  to 
295).  The  Government  of  the  U.  S.  "justly  boasts  of  its  complete 
freedom  in  this  respect"  and  it  is  to  be  borne  in  mind  that  the  jtowcr  of  this 
country  has  been  built  up,  and  that  cpiite  recently  by  the  practical  recog- 
nition of  the  right  of  expatriation. 

The  Frenchman  is  allowed  to  become  the  suhjeet  of  another  power,  and  to 
serve  in  its  armies,  but  must  not  tight  against  France.  The  American  He- 
publican  can  absolve  himself  entirely  from  his  allegiance  to  the  U.  S.  See 
folio  246  et  seq. 

^ote  64. — Tliis  is  not  denied  by  Mr.  Marcy,  but  he  takes  the  ground  that 
it  is  a  violation  of  the  Act  of  Ci)ngres<  to  "  seduce  "  even  foreigners  to  leave 
the  U.  S.  to  enter  into  a  foreign  service,     frei  folios  178,  204. 


42 


li' 


113  "Without  entering  fnrfclier  into  a  discussion  of  this  pecuUa 
doctrine,  I  Avill  onl}''  renuirk  that,  at  all  events,  it  was  not 
proclaimed  or  insisted  vpon  by  the  United  States,  either  at 
the  conwiencement  of  the  war,  or  when  the  desire  of  lie r 
Majesty's  Govenmiont  to  raise  a  foreign  legion  was  first 
published,  or  when  a  recruiting  station  was  first  opened  at 
Halifax.(55) 

The  United  States,  therefore,  although  always  and  most 
properly  insisting  on  their  right  and  intention  to  punish 
violations  of  their  municipal  law,  took  no|step  to proclajini  or 
vindicate  the  particular  doctrine  now  set  forth  until  a  very 

114  late  period  of  the  disciLssion,  and  after  the  time  for  giving 
effect  to  it  had  gone  by.  The  charge  of  "  violation  of  so- 
vereign territorial  rights"  cannot,  therefore,  in  the  opinion 
of  Ilor  Majesty's  Government,  be  fairly  urged  as  a  sej>arate 
and  different  charge  from  that  of  violation  of  the  municipal 
law  of  the  United  States.(56)  But  the  municipal  law  was  cer- 
tainly not  violated  l)y  the  orders,  nor,  as  far  as  thoy  believe, 
by  the  officers  of  Her  Majesty's  Government  ;(57)  and  both 
Pier  Majesty's  Government  and  Her  Majesty's  Minister  at 
Washington  irave  reiterated  orders  to  all  concerned  care 
fully  to  abstain  from  such  violation  ;  and  if  the  British  (io- 
vernment  did  not  i)urp()SL'ly  cause  tlio  rnlted  States'  law  to 
be  violated,  tlicn  tlie  territorial  rights  of  the  United  States, 
whatever  they  may  be,  were  not,  as  has  been  said,  inten- 
tionally violated  by  Great  l>rirain,  ''as  a  7iatIon,"  even  if 
it  should  be  shown  that  (he  muniei[»al  law  of  the  Union 
was  infringed. 

Before  I  conclude  this  dispatch,  it  may  be  useful  to 
place  on  record  certain  facts  connected  with  the  question 


115 


Jfote  55. — As  already  observed  (folio  30,  36),  the  doctrine  in  question  was 
not  started  until  Lord  Clarendon  lesolved  to  abandon  enlistments  in  the 
British  provinces  of  persons  coniiii!;  from  the  U.  3.  Mr.  Marcy  was  thereupon 
advised  by  Mr.  Cushinir,  mainly,  it  appears  on  the  strength  of  n  passage  in 
Vattel,  that  the  British  Government  had  done  no  more  than  they  were  bound 
to  do  by  the  law  of  nations,  and  afterwards  we  find  Mr.  Marcy,  for  the  first 
time,  broaching  the  "  peculi  ir  doctrine"  referred  to  by  Lord  Clarendon. 

Note  6G.— See  folios  l.S,  104. 

Note  67. — This  is  erroneously  assumed  by  Mr.  Marcy,  (folio  141)  to  be  in- 
consifltent  with  I.ord  Clarendon's  previous  statement.     See  note  72. 


43 


ofrecmiting  in  North  America,  the  correctness  of  which   116 
will,  I  doubt  not,  be  acla\itted  by  Mr.  Marcy ;  and  I  will 
observe — 

First — That  the  l.'nited  States  Government  '>vere  from 
the  fi^'st  perfectly  well  aware  that  Her  ^Majesty's  Govern- 
ment were  in  want  of  recruits,  and  were  desirous  of  raising 
a  foreign  lemon. 

Secondly. — ^Tliat  [(reparations  were  making  to  receive 
recruits  in  a  British  Nortli  American  colony  for  such  a 
legion. 

Thirdhj. — ^That  ITer  Majesty's  (iovornmont  expected  to   117 
receive  recruits  there  for  sucli  a  legion  from  the  United 
States,  although,  wliilst  so  doing,  they  were  anxious  not  to 
violate  the  United  States'  law.(58) 

Fourthly. — That  many  British  subjects  and  foreigners, 
in  the  United  States,  wore  honajide  "•  volunteers,"  desirous 
from  various,  but  natural  and  powerful  motives,  to  enlist. 
Numerous  otters  to  raise  men,  within  the  Ignited  States, 
were  made,  but  were  conslsteutlv  and  lnaiorablv  refused 
by  Iler  Majesty's  ministers  and  consuls,  in  order  to  avoid 
violating  tlie  United  States'  law,  118 

Fifthly. — That  Mr.  Marcy  was  in  confidential  commu- 
nication witli  you  on  tlie  suliject  for  months,  without  ever 
that  I  am  aware  of,  warning  you  agr.inst  attempting  any- 
thing of  the  kind,  or  stating  that  the  ['nited  States  would  re- 
sist or  resent  it,  njxirf  frotn  any^jUixtloi)  of  municij  Haw ^ 
thus,  in  ett'ect,  ac(|uiescing,  and  only  insisting  that  the 
United  States'  law  sliould  be  respectcd.joO) 


iVb/?58. —  It  cannot  be  doubt  til  that  the  U.  S.  Government  knew  very  well 
that  the  British  autlioritii'u  •■xpoelt'd  to  enlist  persons  at  Hulifiix,  itc.,  who 
>night  come  from  the  U.  S.  in  piirsuMnce  of  invitations  put  fortli  by  the  Bri- 
tish authorities.  Mi'.  Marcy's  lirst  letter  impliedly  admits  their  right  to  do 
BO.     (See  folio  60,  note  7S). 

Nole  69. — Mr.  Marcy  did  not  at  that  time  intimate  tliat  foreigners  who  had 
been  persuaded  to  leave  tlie  l'.  S.  could  not  riglitfully  be  enlisted  in  the  Bri- 
tish provinces.  Neither  Mr.  Crampton  nor  anybody  else  could  have  then 
supposed  that  such  a  doctrine  would  bo  set  up  by  a  Republic,  whose  fleets 
and  armies  are  composed  almost  exclusively  of  foreigners. 


44 


119  Sixthly. — Tliat  as  soon  as  it  became  apparent  that  the 
United  Sta'es  Government  was  adverse  to  the  scheme,  and 
that  it  Diitjht  load  to  viohitions  of  the  United  States'  law, 
the  whole  project  was  abandoned  out  of  deference  to  the 
United  States  ;  bnt  this  oonelnsive  proof  of  the  good  faith 
and  good  Mill  of  Her  JMajesty's  Government  has  not  heea 
noticed  or  appreciated  by  the  Government  of  the  United 
Statos.(0()) 

Seventhly. — That   tl:e   whole  rpiestion   in   dispute   now 
turns,  not  on  wliPit  is  doini;,  or  shall  or  may  be  done,  by 

120  Iler  Miijesty's  (lovernnient,  but  on  Mhat  was  done  many 
months  ago,  under  a  system  which  is  not  continuing  nor 
about  to  bo  revived,  and  which  has  been  voluntarily  and 
delinitively  abandoned,  in  order  to  satisfy  the  United  States, 
and  to  prevent  the  occurrence  of  any  just  ground  for  com- 
plaint. 

*  *  »  * 


Lord  Clare7uIo7i  to  Mr.  Crampton. 

FoiiEKiN  Offick,  April  5,  1855. 

Sir, — I  entirely  a])prove  of  your  proceedings,  as  reported 
in  your  dispatch,  No.  57,  (^f  the  12th  ult.,  with  respect  to 
the  proposed  enlistment,  in  the  (Queen's  service,  oiforeign- 
121   ers  and  British  suhjcvtfi  in  the  United  States. 

The  instructions  which  I  addressed  to  j'ou  upon  this  sub- 
ject, and  those  which  were  sent  to  the  Governor  of  Nova 
Scotia,  were  founded  upon  the  reports  from  various  quar- 
ters that  reached  Iler  Majesty's  Government  of  the  desire 
felt  by  many  British  subjects  as  well  as  Germans,  in  the 
United  States,  to  enter  the  Queen's  service,  for  the  purpose 
of  taking  part  in  the  war  in  the  East;  but  the  law  of  the 
United  'States,  with  resj/ect  to  ejdistin^nt,  however  conduct- 


Note  60,— See  notes  80,  36,  ?7. 


49 


ed,  18  not  only  veryjunt,  hvt  very  8tnngent,{Ql)  according  to   182 
the  report  which  is  enclosed  in  your  dispatch ;  and  Her 
Majesty's  Government  would,  on  no  account,  run  any  risk 
of  infringing  this  law  of  the  United  States. 


Mr.  Marcy  to  Mr.  Buchanan. 

Department  of  State,      ) 
Washington,  Dec.  28, 1855.  \ 


"  \y  is  perceived  with  deep  regret,  that  there  ex  i  stfi  avevy 
wide  diiterence  of  opinion  between  this  government  and 
that  of  Great  Britain,  in  regard  to  the  principles  of  law  in- 
volved in  the  ponding  discussion,  and  a  still  wider  difter- 
ence,  if  possible,  as  to  the  material  facts  of  the  case." 

(Ueferring  to  Lord  Clarendon's  dispatch  of  Nov.  IG,  1855, 
Mr.  Marcy  says) :  "The  claim  put  forth  in  that  despatch  of 
the  right  of  a  foreign  belligerent  power  to  resort  to  the  ter- 
ritories of  a  neutral  state  to  recruit  its  armies,  and  for  that 
purpose  employ  such  means  as  he  justifies,  raises  one  of  the 
gravest  international  questions  whicli  can  come  under  con- 
sideration. If  that  right  be  conceded,  then  any  foreign 
power  can  justifiably  resort  to  measures  for  recruiting  its 
armies  within  the  jurisdiction  of  this  country  almost  co- 
extensive with  those  which  can  be  employed  by  this  go- 
vernment.(62) 


123 


Note  61. — Lord  Clarendon  ia  evidently  speaking  of  enlistments  in  the  Bri- 
tish provinces  of  foreigners  and  British  subjects  then  in  the  U.  S.  but  who 
were  to  be  invited  to  come  to  the  British  provinces.  He  refers  to  tlie  U.  S. 
Irw,  prohibiting  foreign  enlistments  in  the  U.  S.,  and  yet  Mr.  Marcy  insists 
(folio  126)  that  by  the  first  paragraph  in  tliis  letter,  Lord  Clarendon  has  ex- 
preosod  his  approval  of  sueh  prohibited  enlistments.  Mr.  Marcy  relies  on  the 
word  " in"    That  construi^tion  is  wholly  unwarranted. 

Note  62. — Here  Mr.  Marcy  flatly  denies  the  right  claimed  by  Lord  Claren- 
don (ante  folio  110).  As  to  the  assertion,  that  if  foreign  governments  could 
invite  foreigners  to  leave  the  U.  S.,  they  would  possess  a  power  of  "  recruit- 
ing" within  the  jurisdiction  of  this  country,  almost  equal  to  that  held  by  the 
U.  S.  government,  it  is  manifestly  erroneou.s.  No  man  can  becoire  a  recruit 
in  a  foreign  service  whilst  he  is  in  the  U.  S.  nor  can  he  engage  to  go  abroad 


46 


124  Before  adverting  to  the  conduct  of  the  officers  and  agents 
of  Her  Majesty's  Government  in  recruiting  within  the  ter- 
ritories of  the  rnited  States,  it  will  be  necessary  not  only 
to  define  our  own  rights,  but  to  ascertain  the  precise  limits 
of  Ih'itish  pretensions. 

After  tlie  dehuteable  i::rouud  shall  be  clearly  ascertained, 
the  range  of  discusssloii  will,  it  is  hoped,  be  reduced  to  nar- 
rower limits,  and  the  probability  of  an  amicable  adjustment 

of  the  present  dirticiilties  increased." 

•:<•  •:■>  *  * 

Mr.  Marcy  says  :    "  The  first  intimation  which  reached 

125  this  government  that  recruiting  within  the  TTnited  States 
had  the  sanction  of  I>ritish  authority,  was  derived  from  the 
proceedings  which  had  taken  place  in  executing  the  plan 
of  enlistment.  The  first  stop  taken  by  the  British  Govern- 
ment, or  any  of  its  ofticors,  in  communicating  with  that  of 
the  United  States  on  the  subject,  was  one  which  implied  an 
assurance  that  the  Britisli  (government  not  only  had  no 
connection  with,  but  actually  discountenanced,  the  scheme 
of  reciuiting  for  the  J-Jritish  army. "(63) 

-:<•  -X-  *       •>r  * 

Mr.  Marcy  rol'ers  to  tlie  lettCi'  from  Lord  Clarendon 
to   Mr.  (.'rampton,  dated,  r>th  April,  iSao,  and  says: 

"  Thus  it  wa.s  brought  to  light  that  the  Bntlah  Cabinet  had 
jpropostd  enlist inoit^  in  the  I'nitril  States,  and  had  employ- 
ed Her  Majesty's  Knvoy  Kxtraordinary  and  Minister  Pleni- 
potentiary accredited  to  this  government  to  aid  in  the 
undertaking.  When  this  despatch  was  received  at  this 
department,  ]\lr.  Gramjiton  M-as  in  the  British  provinces. 
It  had  direct  reference  to.tlie  enlistment,  for  the  Queen's  ser- 
vice, of  foreigners  and  British  subjects  i;j  the  Fnited States. 
(64.)    The  object  to  be  accomplished  was  against  law  ;  and 


126 


and  become  such  recruit.  If  any  further  restraint  Iiad  been  consistent  with 
the  iiistitut'ons  of  tiiis  cuuntry,  Congress  wouhl  not  have  contincd  its  prohibition 
to  acts  of  enlistments  witliin  tl  e  U.  S.  ami  contracts  to  go  abroad  with  in- 
tent, itc. 

Nole.  03. — The  assurance  referred  to  was  merely  that  no  contracts  respect- 
ing eiili.stnietits  were  autjiorizcd  to  be  made  here  (folio  71).  This  assurance 
was  in  exact  accordance  with  the  instructions  given  to  the  agents.    (  ee  folio 

9). 

Note.  64 — See  this  remarkable  misconstruction  of  Lord  Clarendon's  lott(  r 
commented  on.     Note  01. 


it  is  difficult  to  conceive  what  one  step  Mr.  Crampton  could   127 
have  taken  in  fiii'tlicrunco  <..f  it  witliout  pnttiiijr  at  dotiancc 
an  aci  of  Congress  Avliicli  jn-ohihits,  in  explicit  terms  and 
under  heavy  penaltie.',  sucli  a  i>rocecdin<^/' 

*:•  •::•  •;;•      ""  «. 

In  the  note  of  the  IGui  of  July,  Lord  Clcmiubm  seems  to 
admitthattheredminhujefnityt'thelawnftlv'Unkcd  States 
in  regard  to  recruit hi(/  /.v  fiuch  as  this  (joverninent  ansscrts  it 
tohe  ;  hut,  by  In's  exposition  of  tliat  hnv  in  his  despatch  of  the 
IGth  November,  it  is  bereft  of  the  very  stringont  character 
he  liad  before  ascril)cd  to  it,  and  it  is  now  so  construed  by 
him  as  to  afford  justification  for  siicli  acts  as,  in  his  former 
note,  lie  conceded  to  bo  illegal.     (<;5.)  igg 

In  the  note  to  you  of  July,  the  Ih-itish  (lovernnient  only 
claimed  the  right  to  makegcnerally  kiiown  toliritish  subjects 
and  foreigners  in  the  I'nited  States,  who  wished  to  enter  lEcr 
Majesty's  service  and  take  part  in  the  war,  its  desire  to  ac- 
cept these  volunteers,  and  to  receive  such  as  should  present 
themselves  at  an  appointed  place  in  one  of  the  liritish  pro- 
vinces. 

That  Lord  Clarendon  int<nd<d.  in  ///v  note  of  the  ItiifA 
July,  to  exclude  all  j/reten.sio7i  to  a  ri'iht  to  j>nhli,sh  hanel- 
hills  qfcrinf/  inducenientKy  (OO)  and  to  send  agents  into  the 
United  States  for  recruiting  purposes,  is  sliown  by  the  foUow- 


Note  66. — Loril  CliirfHiloii's  note  of  ICth  July,  .-o  far  iVom  containing  this 
admission,  insists  fully  (in*l  .'learly  upon  tiip  riglit  of  tln'  liiiti.>h  (iovcrninent 
to  act  u»  it  had  doni',  ^fulio  08)  Lord  Clnrt'ndon  there  in.-kts  on  the  right 
to  invite  volunteers  from  the  United  States,  (  folio  t'.'.i)  iunl  oii  ;lu>  right  to 
pny  their  passnge  from  the  I'nited  States  to  tlie  British  provinces.  (  folio  72) 
No  new  elaim  of  riglit  is  se-t  up  by  Lord  Ciarendoii  in  iiis  dispatch  'if  the  IGth 
November,  but  he  ghows  clearly  that  .Mr.  Marcy  iiail  set  n|)  a  new  case  an('. 
one  that  was  inconsiste'^t  with  his  former  letters,  (see  folios  11;',  US,  noti?8 
8),  3(5,  37.) 

Note  GC. — So  far  from  this,  wo  find  that  Lortl  Clarendon,  in  the  letter  re- 
ferred to,  claimed  the  right  to  adoj)!  "  the  measures  necessary  for  mnking 
generally  known  that  Her  Majesty's  (Government  were  ready  to"  enlist  in  the 
Briti-sh  Provinces  Buhjects  of  the  Queen,  and  foreigners  in  the  United  States, 
who,  from  political  feeling,  were  desirous  of  entering  tlie  Britisli  service. 

Mr.  Morcy's  argument  is,  that  Lord  Clarendon  must  he  taken  as  having  ad- 
mitted in  this  letter  that  the  Briti.sh  Government  had  no  right  to  publish  hand- 
bills, «tc.,  to  make  known  their  readiness  to  receive  volunteers  in  British 
North  Ameiica,  because  he  said  thot  some  unauthorised  persons  had  violated 
the  laws  of  the  United  States  1  a  most  illogical  conclusion. 


1 


is 


129  ing  passage  ; — "It  can  scarcely  be  matter  of  surprise  that, 
wlien  it  bocame  known  that  Ilcr  Majesty's  Government  was 
prepared  to  accept  these  vohmtary  offers,  many  personv  in 
various  (piarters  should  give  themselves  out  us  agents  em- 
ployed by  the  Jiritish  (-rovernmeut,  in  the  hoi)c'  of  earning 
ro^vard  by  promoting,  though  on  their  own  responsibility, 
an  object  which  they  were  aware  was  favorably  looked 
upon  by  the  British  (lovernment.  Her  Majesty's  Govern- 
ment do  not  deny  that  the  acts  and  advertisements  of  these 
self-constituted  and  unauthorized  agents  were,  in  many  in- 
stances, undoubtedly  violations  of  the  laws  of  the  United 
States  ;  but  such  persons  had  no  authority  whatever  for  their 

130  proceedings  from  any  British  agents,  by  all  of  whom  they 
were  promptly  and  une<piivocally  disavowed." 

These  positions,  taken  by  the  Earl  of  Clarendon,  brought 
the  matter  to  a  definite  point.  This  government  took 
issue  upon  his  allegation  that  t/ic  persotis  €n<jageil  in 
reGruiting  in  the  United  States  were  self-constituted,  unau- 
thorized agents,  whose  acts  had  been  disavowed;  (67)  and 
maintained,  on  the  contrary,  that  the  persons  perfornuiig 
them  were  authorized  agents,  and  had  end)arked  in  that 
service  in  consetpience  of  inducements,  stronger  than  the 
mere  hope  of  uncertain  reward,  held  out  to  them  by  Hritish 

131  officers  ;  that  they  were  promised  connnissions  in  the  British 
army,  and  some  of  them  were  actually  received  and  treated 
as  fellow-officers,  and  as  such  were  paid  for  their  services, 
received  instructions  from  IFer  Majesty's  servants  for  the 
guidance  of  their  conduct  while  within  the  United  States, 
and  were  furnished  in  the  same  way  with  abundant  funds 
for  carrying  on  their  recruiting  operations  in  this  country. 
The  persons  engaged  in  the  United  States  in  recruiting 
were,  in  fact,  the  agents  and  instruments  of  eminent  British 


Note  67. — Lord  Clarendon  does  not  assert  that  all  tho  persons  engaged  in 
what  Mr.  Marcy  calL  recruiting  in  the  United  Statea  were  self-constituted 
unauthorised  agents,  for  Mr.  Marcy  calls  all  persons  "  recruiters"  who  were 
disseminating  information  respecting  the  terms  oa  which  recruits  would  be 
received  in  the  British  provinces.  Lord  Clarendon  admits  that  the  agents  of 
the  British  Qovernment  had  done  all  this,  and  he  insists  on  their  right  to  do 
so,  but  adds  that  unauthorised  persons  had  done  more  and  bad  violated  the 
laws  of  the  United  States. 


49 


functionaries  rcsi<lent  here  nnd  in  noii2;li1)orinir  Tritii-li  pm-    132 
viiices.     The   nuineroiirt  jiulicial  liiVLstiutitiDiis   and  trials 
htivo  brouirlil  out  a  nubs  of  tCHtinidiiy  tno  ^troiii;'  to  ho  re- 
siste<l,    iiiij)h"('atiiii,^  these  t'linetionaries  jind  ^nstuiuiu^'  the 
fore<;oiii<;  allegations."    ((18.)  "•••  •••  " 

''This  ^i^overnnient  does  not  eontest  Lord  Clarendon's  two 
propositions  in  respoct  to  the  sovereiii'u  ri<>hts  of  the  I'niled 
States — tirst,  that,  in  (Ii  •  a/'Si  nreof  nnniirljuil  liiit\  ((iKi  (-Jrcat 
liritain  nuiy  enlist,  hirt-,  or  en,uai;e,  ;is  soldit-rs,  within  the 
British  territory,  i)ersons  who  have  left  the  I'liitcd  Siuti-s 
for  that  ])urposi',  Thi-;  proposition  is,  hdwi'vti',  to  Ih'  un- 
(Ur^ooil  as  not  ai)i)lyin<if  to  ])crs»ns  who  have  Ikhu  inlind  133 
awiiy  from  f/ic  cotuiffy  hy  teniptiui;-  oIl'iTsof  rtwards,  >iich 
as  eoniinissioMs  in  the  llritish  arui\,  /li;///  //'"/.«,  lihi'ial 
bounties,  pensions  and  portions  ot'  tin.'  royal  domain,  ur<i(.(l 
oa  thuni  while;  within  the  I  nitcd  States,  hv  the  olHceis  and 
affeiiH  of  Ifer  Araiestv's(t()vt'rnini'nt ;  ((10)  and  srcdndlv,  no 
f  >rei^ii  power  has  a  right  '"to  enlist  and  or<rjini/(..  and  train 
men  as  British  soldiers  within  the  Tnited  States."  'lheriii;ht 
to  do  this  Lord  (Jlarendon  does  ni»t  claim  tnr  his  nnviMii- 
mei.t;  and  whether  the  I'ritish  ntliccrs  havr  doiir  <m  or  not, 
is,  as  he  ap})eai's  to  understand  the  else,  the  oidy  (piest'on 
at  issue,  so  I'aras  international  ri^'htsare  involved,  between 
the  two  eountries. 

In  his  view  of  the  (piestlon  as  to  the  riulils  of  territory, 
irrespective  of  niunieip-al  law,  Ivml  ("hirendon  is  understood 
to  maintain  that  Her  ^tajesly's  ( JoNcrmiunt  may  authoi-jze 
airents  to  do  anvthiu";  within  the  Tnited  Slates,  s/io/f  of 
enlistiiKj  and  or(jan'tzhi(j^  iiihI  (I'diiinKj  ni' n  (is  KnUIlrrx  for 
the  Britisli  army,  with  iierfs.'ct  respect  to  the  sovereign 
rights  of  this  country.     iTC) 

This  proposition  is  exactly  the  reverse  of  thai  maintained 


134 


Note  68. — No  doubt  these  ftinctioniirie.s  are  iii,i>lii:uteil,  ii-s  nllcgcil,  if  il  be 
an  offence  to  invite  or  induce  foreiiriuTS  to  liavc  ll.u  lliiitcit  States  to  be  en- 
listed in  foreign  servieo,  l)ut  on  no  otlier  iiyiiotiicsis  nni  any  etiarge  against 
the  British  agents  be  sustained  upon  the  pnlilislied  allegations  and  proofs. 

Note  69. — See  comments  on  tliis  passage,  notes  12,  'M. 

2fote  70. — That  is  not  Lord  Clarendon's  proiiosition,  for  l)e  admits  that  no 
contract  can  be  made  for  parties  to  go  abioad  with  intent  lo  enlist.  His  lan- 
guage is  express,  plaio  and  clear  on  that  subject.  (  folios  lui-  to  103,  110.) 


60 


135  by  tills  pr.v.-^rnmont,  wliicii  hoUU  that,  no  foroipn  power 
wluituvcr  IiUH  tlio  right  to  do  eitlu-r  of  the  Fiiociliod  iwU 
without  itri  coiMi'iit.  i\o  l'or(Miji;ii  power  cm,  by  its  iigciitH 
or  otKccrs,  hiwI'iiUy  enter  tlie  territory  of  aiiolht'r  to  enlist 
soldiers  for  itn  s^ervico,  or  orgiini/.e  or  train  them  therein,  or 
even  ciitici' pemms  inivit/  In  anlir  to  he cidldedy  without  ex- 
{)ress  permission.  (71.) 
This,  as  a  rule  of  international  law,  was  oonsidoredso  well 


;36 


lor 


11(1- 


eettledthat  it  was  not  deemed  iieee-sury  l(»invnki'  the  uutl 
ity  of  i»ul>lieis1s  to  sup|»ort  it.  I  am  not  aware  that  any  i 
dorn  writer  on  international  law  has  (piestioned  its  sound- 
ness. As  this  important  i»riiK'ij)lo  is  controverted  l>y  Lord 
C'larendon,  and  as  it^  nniintenanee  is  fatal  to  his  defenee  of 
British  reernitin<i^  here,  1  propo>o  to  establish  it  by  a  refer- 
ence to  a  few  elementary  writers  of  eminence  u]>on  the  law 
of  nations : — 

"'  Siiiet-  a  rii^ht  of  vaisinc;  poldiors  is  n  vii;lit  of  majesty 
which  cannot  be  viohiti-d  bs-  a  Ibreiixn  mitioii,  it  is  not  per- 


137   tl 


mitted  to  raise  soldiers  on  the  ti  ii'itnrij  of  antihii'  without 


le  consent  of  its  siovereigu." —  Woljiun. 


Vattel  says,  that — 

''  T/iv  man  who  undertakes  to  eidist  sr.ldicrs  in  a  foreign 
conntry  without  the  s-overeiun's  permission,  and,  in  general, 
whoever  i  ni'a  rx  uu'iiij  tin  nnhjicfx  iif  iUinthiv  SUifr^  violate> 
one  of  the  most  sacred  rights  of  the  prince  of  that  nation." 

lie  designates  the  crime  by  harsher  names  than  I  clioosu 
to  nse,  which,  as  he  says,    "  is  ]»unished  wilh  tiie  utmost  ge- 
138    verity  in   every   well-regulated    State.'''      \'attel  further 
observe?,  that — 

"  It  is  not  i>rosnmed  that  their  sovereign  has  ordered  them 
(foreign  rerruitei-s)  to  commit  u  crime;  and  su))posiug,even, 
that  tliev  bad  ri'eeived  such  an  ordc^r,  they  ougiit  not  to 
have  obeyed  it;  their  sovereign  having  no  riglit  to  command 
what  is  conti-ary  to  the  law  of  miture." 

Ilantefcuille,  a  modern  Frencli  author  of  much  repute, 
regards  j^ermiirsion — and  acciuiescence  implies  pernjipsion — 


Note  7t. — Tliis  doctrine  as  to  enticement  is  unsound  as  applied  to  the  United 
States.  ( See  notes  16,  30,  fo.  2 IC  ct  seq) 


i  o 


61 


by  a  tunitrul  power  to  ono  licUi^i^rcut,  thoii^^li  cxteiuUid  to    139 
both,  to  ratHi'  retwuitu  in.  iti  trrritin-o.^^  iiiib'HW  it  wuh  allowed 
in  poueo,  to  bo  an  act  ot'  bad  liiifli,  which  cuinproiiiits  its 
iKMitrulity. 

Thoro  can  bp  no  well  foundod  di-^tiiiction,  in  thu  ruin  of 
iiitL-rnational  law,  hi'twecii  raisin;^;  soldiiTst'or  ahclli^vreiit's 
.iiiiiv  and  sailoiH  i'or  itx  navy  williin  a  neutral  coiiutrv. 
llautot'euillo  says : 

''The  neutral  sov('i'ei<j^ri  is  under  ()Itli;^ati<)ii  to  prohibit 
andorevent  all  lirijiini  <>/ .'ndloi.^  iij>oii  ih  t rritarij  tor  tUo 
service  of  the  l)elli<j,erents."  140 

Aj;ain,  ho  says  : 

"■The  neutral  nuisl  prohibit,  in  an  ahsulute  ninnnor,  tho 
levyin*;  of  Kailorn  iii>un  Its  tii-fiforii  to  ooniplele  a  ship's 
company  re<lu('ed  l>y  ci'inltHt  or  any  other  eause. 

[\\c  pr«»hi!)ition  to  in;;af;'e  sailors  on  the  territory  of  u 


pacilie  j»rinee  must  extend  to  loivinner-i  who  are  found  in 
the  ports  o|'  his  juri-^diefion,  and  even  to  tho-o  "who  bc- 
lon^X  to  th(^  beliixerent  nation  owniiii:;  the  vessel  that  wishes 
to  coni}»lete  its  crew,  or  ^-hip's  eoinpany." 

Itid'erenco  to  other  writoif*  niii>;ht  bo  made  to  sustain 
tho    position   eontencUd  I'or  by  this   (lovernment,  antl  to 
(ivorthrow  that  advaiice.l  by  I,(»rd  ( "larendon  ;   but  the  au-   141 
thoriiy  uf  tlioso  prosentod  is  doomed  sullicient  for  that  pur- 
pose. 


* 


"  The  (/roft'id  tiihii  hi  Jul'j — flmt  ihc  j>irs(Jiis  c/ir/af/cd 
in    r('(^niitintj  trAm    lixd  viiddti'tf  the  Ihick  >>f  tin-    f'/iitid 


'<    W,  I'C      K, 


/r-/'oii^-(ifitf<'d  (iiid    itiiiiutliDrizcd    <r/rNf.s — is 
uhandoiuil in  h in  dispatch  of  Novciuht /'.    (7*i.)    In  the  latter 


lercd  them 
si  lip.  even, 
;;iit  not  to 
1  coiamand 


to  the  United 


Note  Vi. — Not  lit  nil.  Lonl  CliirtMidon  in  lii-  July  Icttorobspvvecl  timtsomo 
iiniiutli">ri;H'(l  ix'fiiiis  liinl  vii'latfd  tlic  act  nf  (.-'"injicss— Ur  did  not  wsiy  tliat 
tlu!  liritisli  (itivi'niiui'.it,  hml  imt  ;mllioiiM'd;\;,'«'iit»  to  pi-  lonii  wliat  Mr.  Mnrcy 
now  discovers  to  !).'  \vi-oiij,'l'uI  acts.  Mr.  Maicv  charg.  s  tiiu  Hritish  ngt-iits 
with  imviiit;  flu'cted  Liilistmeiit.s  uiid  made  unlawful  enga^'emeiits  in  the 
United  Stato-i,  and  alxo  with  iiaviiii^  invitccl  niid  a^M>tl•'l  foreigners  to  leuvo 
the  United  States.  The  latter  act  is  jiistitied,  whilst  tho  former  is  denied, 
and  imrtieularri  of  tJie  alleyd  inisdced.s  are  asked  for  in  lieu  of  vague  and 
general  charges. 

It  is  surprising  that  Mr.  Marcy  should  have  supposed  that  there  was  any 
inc'ousistency  iu  this. 


52 


^ 


142  it  18  not  denied  that  these  persons  have  acted  under  the 
authority  of  the  i>ritish  (Tovernment;  hut  Her  Majesty's 
miniistcrs  now  jn'Dpose  to  <>;ive  their  attention  to  the  de- 
mand of  this  (Government  for  redroi^s,  if  it  will  make  and 
establish  niure  distinct  charges,  with  proper  specifications 
against  particular  individuals  hy  name.  Quite  as  much, 
and  indeed  nioi-e  ihan  is  usual,  has  been  done  in  this  case 
in  spLJcilying  cliarges,  and  indicating  the  persons  impli- 
cated.'" 

^li  -X-  *  *  *  * 

"  Not  long  siiu'e,  Her  Majesty's  minister,  Mr.  Ciampton, 

143  represented  to  tliis  (Titvermiiont  that  the  l)ark  Maury  was 
being  litted  out  in  the  [)ort  of  New  York  as  a  privateer,  to 
depredate  u[)on  the  commerce  of  the  Allies.  Tlie  evidence, 
if  it  could  be  called  such,  to  support  the  charge,  conBisted 
of  alHdavits,  detniling  loose  rumors,  and  some  circumstances 
about  her  e(]uii>uient,  wlil(;li  justified  a  hare  suspicion  of  an 
illegal  jiurpuse.  li'  there  could  be  a  ca«<e  which  would 
warrant  the  course  suggested  by  Her  ]\[ajesty's  ministere  in 
vespce.  to  the  coiiijihiiut  of  this  (Government  against  British 

144  recruitments  within  the  Iniited  States,  it  would  be  that  of 
the  bark  Maury;  Imt  the  J'rcsident,  withr»ut  the  slightest 
hesitation  or  delay,  ordered  ])roceedings  to  be  instituted 
again-^t  that  ves>el  and  against  all  ]>ersons  wlio  should  be 
found  to  be  implicated.  All  the  alleged  causes  of  suspi- 
cion wi're  immediately  investigated,  and  the  result,  which 
showed  the  utter  gr<iundlessne-^s  of  theeliiirge.  was  promjitly 
communicated  to  Her  Majesty's  (T()vernment. 

If  this  (jovernment,  acting  upon  tiie  rule  now  prescribed 
in  the  ca<!  of  Hritish  recruitments  in  this  country,  had  re- 
l)lied  to  that  of  (ireat  Ihitain,  on  the  conijilaint  against  the 
5^45  bark  Maury,  that  inasmuch  as  Mr.  Crampton  had  not  made 
any  definite  charge— hud  not  named  tlie  persons  accused 
with  a  precise  sttitement  of  their  acts,  or  when  or  where 
done,  or  produced  the  evidi-nce  on  which  he  intended  to 
rely  to  sui)port  hisalh'gations,  so  that  the  )>ersons  concerned 
might  have  un  o])portunity  to  deal  with  it,  nothi)ig  would 
be  done,  no  stej)  would  be  taken,  until  those  preliminary 
matters  should  have  been  attended  to — woidd  such  a  reply 
jn  the  c:ise   of  the  Maury  have  been  what  her  Majesty's 


53 


minister  might  have  expected — would  it  have  been  deemed   146 
courteous  or  friendly  to  the  Britisli  Government  ? 

Lord  Clarendon  may  be  well  assured  that  such  a  reply, 
in  the  case  of  the  Maury,  would  hav(i  been  quite  as 
satisfactory  to  Her  Majesty's  Government  as  is  his  rei)ly  to 
this  Government  in  relation  to  its  remonstrance  and  com- 
plaint against    British    recruitments  within    the    United 

States."    (73.) 

*  *  •:<■  *  *  -X- 

"  This  Government  asked,  as  a  part  of  the  satisfaction 
due  to  it  from  Great  Britain,  that  the  men  who  had  been 
enticed,  contrary  to  law,  from  the  United  States  into  the   147 
British  Pro'inces,  and  there  enlisted  into  Her  Majesty's 

service  should  be  discharged." 

*  *  *  •;<•  *  * 

Mr.  Marey  shows  that  Lord  Clarendon  does  not  propose 
to  comply  with  this  re(piest  "notwithstanding  the  illegal 
means  which  were  Uhod  to  entice  or  decoy"  men  "to  leave 
the  United  States  for  the  purpose  of  heingenlisted  into  the 
British  Foreign  Legion."     (74.) 

"Lord  Clarendon  has  placed  on  record  "certain  facts," — 
seven  in  imnd>er — the  correctness  of  which  he  says  he  does 
not  «loubt  will  be  ndniitted  hy  me.  After  duly  consi<lering  148 
them,  1  am  constrained  to  say  there  is  scarcely  one  of  them, 
bearing  on  tlie  merits  of  the  case  under  diseussion,  which  I 
can  admit  without  essential  niodilications.  Someof  themi 
shall  make  the  subject  of  remark.  One  of  these  alleged 
facts,  or  rather  statements,  which  1  cunnot  omit  to  notice, 
is,  "that  as  soon  as  it  became  apparent  that  the  United 
States  (jovernment  was  adverse  to  the  scheme,  and  that  it 
might  lead  to  violations  of  the  United  States  law,  the  pro- 


Note  73. — There  i-"  no  force  in  tliis  urfruiiK'nt.  Wlien  a  criniu  is  charged^ 
themagistrnte  slioiil'!  oMijiiirc  wlietliiT  the  cliiiri,'<'  is  well  founded,  but  he 
should  institute  iio  enquiry  without  ii  sufficient  coiniilaint.  Hut  what  liaa  tliat 
to  do  with  a  case  wlicre  one  (Jovurnnient  states  to  another  that  its  agents  iiuve 
violated  the  law.  Surely  it  is  right  to  ask  who  the  agents  are  and  what  they 
have  done. 

Mr.  Maivydoe.s  answer  these  questions  ami  ftiniish  the  particulars,  although 
before  doing  so  he  delivers  a  long  ami  very  bad  argument  to  shew  that  he 
ought  not  to  comply  with  the  re(juest. 

Note  74,— It  is  not  probable  that  this  deiaand  will  be  complied  with. 


5i 


149  ject  was  abandoned  out  of  deference  to  the  United  States;" 
and  he  add?  an  cxpvessii>n  of  regret  that  "  this  proof 
of  good  faith  and  good  will  of  Her  Majesty's  Government 
has  not  been  noticed  or  appreciated  by  the  Government  of 
the  United  States." 

If  tlie  fact  on  which  Lord  Clarendon  relies  for  the  proof 
of  good  faith  and  good  will  shall  be  shown  to  be  essen- 
tially ditiereiit  from  what  he  conceive.-*  it  to  be,  he  will 
understand  the  cause  why  tliis  Government  does  not  appre- 
ciate it  a^  he  docn 

In  a  question  of  this  kind,  dates  are  important.  When  did 
^^^  it  become  apparent  that  the  United  States  CJovernment  was 
averse  to  tlie  recruiting  scheme,  and  how  soon  thereafter 
was  it  abandoned  i 

I  hope  to  l)e  able  to  convince  Lord  Clarendon  that  they 
were  not  contem])oraneous  events;  that  far  the  greatest 
number  of  obiectionable  acts  committed  1)V  the  British 
officers  was  jierfonned  huig  after  this  government  luid,  in 
the  most  public  and  emphatic  manner,  reprobated  tlie  re- 
cruiting project ;  after  prosecutions  had  been  ponding  for 
months  against  tlio  agents  of  IJrltish  otKcers,  -with  the  full 
knowledge  of  tliese  otficers,  and  also,  as  it  was  fair  to  pre- 
sume, with  the  knowledge  of  tlieir  government. 

Mr.  Cmmjiton's  intercourse  with  these  recruiting  agents 
commenced  in  Jamuiry.  On  the  4th  of  February,  ho  noti- 
fied Strobel  and  Hertz,  by  a  note  addressed  to  each,  that  ho 
was  tlien  a1)le  to  give  them  precise  in-^tructions  on  the 
subject  alluded  to  in  a  ])revious  personal  interview,  and 
there  can  be  no  doubt  tluit  tlie  subjec*"  alluded  to  was  re- 
152  cruitinfj  witliin  tlie  United  States.  That  scheme  did  not 
sufficiently  develope  itself  in  our  principal  cities  u!itil  the 
month  of  March.  Immeiiately  tliereupnn,  the  United 
States  Government  nuiuilV'sted  the  niD.st  decided,  unecpu- 
vocal  and  public  demonstration  of  averseness  and  resist- 
ance to  it."     (75.) 

*  *  *  -x-  *  # 


151 


Note  75. — Why  <lul  not  Mr.  Marcy  llien  tcU  Mr.  Crnmpton,  tliut  offence 
would  be  taken  it'  furoigners  were  iiiviti'<l  or  iinluccii  in  any  way  to  leave  the 
U.  S.  for  the  purpose  of  beeoujing  recruits  in  the  British  proviuces? 


55 


"  Kot  only  iii  New  York,  V-nt  at  Boston,  Philadolpliia,  and  153 
other  places,  the  most  vigorous  efforts  were  publicly  made 
by  the  federal  officers,  acting  under  inir-lructlons  of  the 
United  States  Governmeiit,  to  juTcst  these  recruitments  for 
the  British  service,  and  hring  the  offenders  to  justice.  No 
local  transaction  was  ever  more  generally  known  or  more 
freely  animadverted  on.  It  provoked  nmch  excitement 
against  the  persons  engaged  in  it,  and  had  it  then  been 
known  that  they  were  in  fjict  employed  l)y  officers  in  emi- 
nent military  and  civil  positions  in  Her  Majesty's  service, 
under  instructions  from  tlieir  Government,  it  might  have  164 
been  difficult  to  restmhi  jniUtr.  indujnatmi  within  proper 
limits.     (TO.) 

The  President  cannot  adopt  the  opinion  of  Lord  Claren- 
don, that  the  question  ])etween  the  two  countries  has 
shrunk  into  the  narrow  limits  he  has  assigned  to  it.  It  is 
true  the  scheiiie  is  at  lengtli  abandoned  ;  and  this  Govern- 
ment accepts  his  assurance  that  it  is  not  about  to  be  reviv- 
ed; but  the  right  to  revive  it  and  1o  cany  it  out  to  the 
!*;=me  extent  as  heretofore,  is  hehl  in  re-erve. 

If  nothing  nioi-e  is  i(^  be  done,  the  I'nited  States  are  left  155 
without  indenmity  for  the  past  or  security  for  the  future, (77) 
and  they  will  hv  understood  jis  assenting  to  p"inciple3 
which  have  been  once  resorted  to,  and  may  be  again,  to 
lay  open  their  territories  to  the  incursions  of  the  recruiting 
agents  of  any  belligerent  who  nuiy  have  occasion  to  aug- 
ment its  military  force. 

Another  of  the  facts  jiut  on  record  by  the  Earl  of  Cla- 
rendon, which  he  assumes,  I  will  admil,  to  be  correct,  is. 


NotelCi. — Tiiere  w;is  no  popular  indignation  on  ilie  pulijoct,  nor  could  nny 
have  been  excitod  in  the  mirtluMn  cilie.-'.  Tlie  public  felt  no  interest  in  the 
question  whether  a  tVw  out  of  thf  many  thousands  of  unemployed  foreigners 
should  go  fortii  to  fight  against  liussia. 

Note^il. — Mr.  Miircy  doen  not  state  what  indtiunity  for  tlie  past  he  re- 
quires. iVrhaps  he  would  he  contented  with  the  return  of  the  persons  who 
have  been  "  neduced"  from  the  U.  S.  (see  fos.  147,  18o),  a  .sufiicient  security 
for  the  future  would  probably  be  an  aeknowleJgi'ment  on  the  part  of  the 
British  Government,  that  they  have  no  right  to  enlist  persons  m  the  British 
North  American  Provinces,  who  have  been  induced  to  leave  the  U.  S.  for 
that  purpose. 


86 


m- 


•It 


156  "  that  Mr.  Marcy  was  in  confidential  communication  with 

"  you  (Mr.  Crampton)  on  the  subject  for  mouths  without 

"  ever,  that  1  am  aware  of,  warning  you  against  attenipt- 

*'ing  an;y  thing  of  the  kind,   or  stating  tliut  the    United 

"  States  would  resistor  resent  it,  apart  from  any  cpiestion  of 

"  municipal  law  ;    thus  in  eftect  acquiescing,    and  only  in- 

"  sitting  that  the  United  States  law  should  be  respected." 
*  *  *  *  *  a 

"  Tlie  charge  imputes  to  me  official  delinquency ;  but  I 
shall  notice  it  only  on  account  of  its  direct  bearing  upon 

157  the  merits  of  the  case  under  discussion. 

If  /  gave  him  no  warning  heyond  insisting  upon  the  ob- 
servance of  the  United  States  /aw,  it  was  because  I  had 
not  at  that  time  any  knowledge  of  the  extent  of  the  re- 
cruiting scheme.  C')  He  had  satisfied  me  that  his  Govern- 
ment had  no  connection  with  it,  and  was  in  no  way  re- 
sponsible for  what  was  doing  in  the  United  States  to  raise 
recruits  for  the  British  army. 

The  first  intimation  that  I  had  been  misled  in  this  re- 
spect reached  me  while  Mr.  Crampton  was  absent  in  the 
British  provinces,   shortly  L.;forc  my  despaich  of  the  9th 

158  June  was  sent  to  you. 

It  is  not  for  me  to  raise  the  (piestion  wliether  Mr.  Cramp- 
ton has  or  lias  not  complied  with  liis  instructions  to  have 
"  no  concealment  "  with  me  on  the  subject ;  but  I  am  quite 
certain  that  on  no  occasion  has  ho  intimated  to  me  that  the 
British  Goveri'ment,  or  any  of  its  oflicers,  was  or  had  been 
in  any  way  concerned  in  sending  agents  into  the  United 
States  to  recniit  tliorein,  or  to  use  any  inducements  for 
that  purpose  ;  nor  did  he  ever  notify  me  that  he  was  tak- 
ing, or  intended  to  take,  any  part  in  furthering  such  pro- 


Nole  78. — Tliis  is"  nn  ndmission  that  Mr.  Marcy  had  f^iven  Mr.  Crampton 
warning  not  to  violate  the  act  of  Congress,  and  had  given  him  no  warning 
beyond  that — iind  not,  as  Lord  Chirendon  says  (  folio  113),  intimated  that 
the  U.  S.  Government  would  "  proclaim  or  vindicate"  flic  new  fangled  doc- 
trine about  seduction.  Mr.  Crampton  had  not  told  Mr.  Marcy  that  tlie  British 
Government  had  no  connection  with  the  means  used  to  disseminate  informa- 
tion to  foreigners  in  the  U.  S.  likely  to  go  abroad  to  enlist,  but  had  assured 
him  that  the  British  Government  had  not  authorized  recruiting,  t.  e.  enlisting, 
hiring,  or  retaining  in  the  TJ.  !ij.  (gee  notes  68,  59.) 


57 


but  I 
upon 


ceeding.    Such  a  communication,  timely  made,  would  pro-   159 
bably  have  arrested  the  mischief  at  its  commencement.  (79) 

"Very  soon  after  the  first  development  of  the  recruiting 
operations  here,  Mr.  Crampton  read  to  me  a  letrer  dated 
the  22d  of  March,  addressed  by  him  to  the  British  Con- 
sul at  New  York,  the  contents  of  which  I  liere  insert  : 
''  I  have  received  your  letter  of  the  20th  instant  (March) 
"  inclosing  a  printed  handl)ill,  signed  Angus  McDonald, 
"  and  informing  me  that  the  said  McDonald  states  to  you 
"  that  he  had  issued  it  by  the  authority  of  Ilcr  Majesty's 
"  Government."  160 

"  I  have  to  state  to  you  that  Angus  McDonald  haS  no 
authority  from  Her  Majesty's  Government  for  tiie  issue  of 
the  handbill  in  question,  or  for  hiring  or  retaining  any 
person  in  the  I'nited  States  to  go  beyond  the  limits  of  the 
same,  with  intent  to  be  enlisted  in  Ifer  Majesty's  service. 

"This  would  constitute  an  infraction  of  the  neutrality 
laws  of  the  United  States  (Act  of  Congress,  181S,  sec.  2) ; 
and  Her  Majesty's  Government,  however  desirous  they 
may  be  to  obtain  recruits  for  the  British  army,  are  still 
more  anxious  that  the  laws  of  the  States,  with  which  Her 
Majesty  is  at  peace,  should  be  respected."  161 

"  I  regarded  this  act  \>\  Mr.  ("'rampton  as  a  disavowal  by 
the  British  (iovernment,  as  well  as  by  himself,  of  all  par- 
ticipation in  the  recruiting  proceedings  then  just  com- 
menced within  the  United  States." 

#  «  #  * 

"Mr.  Crampton  could  not  have  been  ignorant  of  what  is 
now  established  beyoiul  doubt — that  a  scheme  for  raising 
troops  for  the  British  service  within  the  United  St "'es  had 
been  approved  and  adopted  by  Her  Majesty's  Government ; 
that  autlioiized  agents,  furnished  with  Instructions  and  pe- 
cuniary means,  and  stimulated  by  the  promise  of  connnis- 
sions  in  the  British  army  and  other  tempting  rewards,  had 
been  employed  to  induce  pereons  to  leave  this  country  and 


Note  79. — Doubtless  Mr.  Crnmptnn  never  told  Mr.  Mnrcy  thnt  agents  were 
employed  to  "recruit"  in  tlie  U.  S.,  bec.inso  tlint  was  not  the  fnct.  But  Mr. 
Marcy  must  have  known  at  the  begining  tlmt  the  British  Government  intended 
to  invite  foreigners  to  go  to  Nova  ocotia,  &.C.,  to  enlist,  jnd  yet  he  did  not 
iutiipate  that  otfence  would  b«  taken  at  it. 

8 


58 


bi- 


163  go  into  the  British  jn'ovinccs  for  tlie  express  pni*po9e  of 
entering  in^o  the  British  service ;  and  that  many  H'h«o  were 
prevailed  on  to  do  so,  had  oin])arked  for  Halifax  free  of 
e\pon.se  in  vessel.'?  employed  by  JJritish  anthority  for  that 
purpose,  and  on  arrivin*;  at  Halifax  had  oidisted  and  been 
enrolled  in  the  British  Foreign  Legion.  (80) 

It  is  with  reluctance  that  I  perform  the  duty  of  bringing 
ii;  viev,-  Mr  Crnin]iton's  connection  with  some  of  the 
f.g  s  who  were  cniployed  in  carrying  out  tlie  recruitment 
>ii/^  -7/I,  and  who  have,  in  doing  so,  viola'ed  the  law  and 

163  sovereiirn  riiihts  of  tiiis  c<nintrv. 

The  intercourse  hevween  ]\Ir.  Crainpton  and  Mr.  Hertz, 
who  was  convicted  'n  September  last,  for  violating  the 
neutrality  law^*  of  the  Fnited  States,  is  established  by  Mr. 
Crnnipton's  two  lettc/s  to  Hertz,  one  dated  the  27tli  of 
January,  and  the  other  the  4th  of  February,  ISof).  The 
origin. 's  of  both,  in  tiio  handwriting  of  Mr.  Cranipton, 
were  produced  to  the  C^ourt  at  the  trial  of  Hertz.  In  the 
latter,  Mr.  Cranipton  says  :  "  With  reference  to  our  late 
"conversation,  I.  am  now  enabled  to  give  you  some  more 

164  "definitive  information  on  the  snltject  to  which  it  related." 

The  connection  l)eing  established,  it  ;i  allowed  to  allude 
brietlv  to  Hertz's  account,  veritied  bv  hisoalh,  of  what  took 
place  between  himself  and  Mr.  C^rampton,  in  relation  to  re- 
el uiting  in  this  country.  Nothing  is  known  which  can  af- 
fect his  veracity,  except  the  fact  that  he  was  engaged  In  re- 
cruiting for  (he  Ih'itii-h  army  within  the  United  States  con- 
trary to  law,  and  has  been  convicted  of  that  offence. 

Hertz  says:  "  All  that  I  did  'n\  proeurh)(f  and  semling 
"  men  to  Halifax  for  Ihe  F<»reign  Legion,  was  done  by  the 
"  advice  and  recommendation  of  Mr.  Cram})ton,  Mr.  IIowo, 
"  and  Mr.  Matthew.  (81)  1  w  as  employed  by  Mr.  Howe,  and 


Note  80. — Tliis  stntcmont  13  incorrect,  if  it  is  meant  to  assort  that  there 
WHS  niiy  Kclieine  approved  of  for  eiilit  tiny  troops  in  tlie  U.  S.,  or  any  illegal 
riintnict  iiidde  therein.  But  if  5Ir.  Mavcy  iiicvfly  intends  to  say  that  a  plan 
w  s  approved  of  to  induce  and  assist  foreigners  to  leave  the  U.  S.  'or  the 
])iirpi)se  of  iiitering  the  British  service,  it  is  correct,  and  it  is  pretty  evident 
that  Mr.  Marcy  did  not  think  of  complaining  of  tliis  at  first. 

Note  81. — What  Hertz  nieiint  by  the  wonls  "  procuring  and  sending  men  to 
Hulifax"  does  not  appear,  nor  is  it  ahow  n  whether  he  did  anything  more  than 


69 


166 


"  acted  as  his  agent,  Avith  the  knowledge  and  approbation  of  16 
"  Mr.  Cranipton  and  Mr.  Matthew.  Mr.  Matthew  knew  of 
"  both  the  expeditions  I  sent.  He  approved  and  oncourag- 
"  ed  me  in  sending  them  away.  lie  enconragod  me  by 
"  his  advice  and  counsel,  and  in  giving  me  money  to  send 
"  them  away." 

Mr.  Max  F.  O.  Strobol  acted  a  more  conspicuous  part 
than  Mr.  Hertz,  and  his  conduct  in  tiio  affair  under  con- 
sideration re(|uires  to  be  more  i'ully  traced.  In  the  state- 
ment here  presented  in  logard  to  his  i)roceedings  and  con- 
neorion  with  llie  British  otiicers,  and  among  them  wilh  Mr. 
Crampton,  I  intend  to  rely  almost  entirely  upon  originjil 
documents  in  j)0>sessiGn  of  ^]m  Government.  I  do  not 
mean,  liowever,  by  this  restriction,  to  cast  the  slightest 
doubt  upiui  tlic  credibility  of  Mr.  Strobel. 

Mr.  (Jrampton's  letter  to  Mr.  Strobel  was  dated  on  the 
same  day,  (February  4,)  as  that  addressed  to  Hertz,  .lud  is 
e.xpre-sed  nearly  in  the  same  terms. 

After  Mr.  Strobel's  interviews  with  Mr.  Crampton  in 
Washington,  lie  embarked  in  the  recruiting  service,  and 
suddenly  r(jse  to  the  ra  '  f  "  Captain  of  the  1st  company 
of  (ho  Foreign  Legion."  He  went  with  a  detacliment  of  1^7 
recruits  raised  in.  rhiladeljiliia,  to  Halifax  ;  was  exultingly 
received  into  followship  with  the  military  and  civil  otii- 
cers of  the  highest  position  in  Her  Miijesty's  scr-  ?.  tiierc 
stationed;  was  invited  to  partake  of  the  ho?i)italiiy  of  His 
Excellency,  Sir  (iaspard  Le  Marchant,  of  '•  Col.  Clark  and 
"  the  otiicers  of  the  76th  llegiment,"  and  of  ''Col.  Fraser, 
"  Col.  Stothera,  and  the  otiicers  of  the  Royal  Artillery 
"  and  Royal  F^ngineers;"  and  the  original  cards  of  invita- 
tion, addressed  to  him,  were  produced  on  Hertz's  trial. 


he  wan  authe  !'»iil  to  do,  vi.'.-,  to  give  tlio  men  information  ami  assistanrc. 
The  Bi-iti.sli  ai^fiits  could  liglitfuUy  pay  thu  expi'iices  of  tlieir  pn?sni;e.  {>oe 
ant.!  folios  On,  ",'!.)  If  Hertz  made  any  nnlawfid  ongagemunt  with  any  pcr.sou 
the  facts  oonntitutinf,'  »ucli  en^agenifnt  should  have  been  proved,  and  the  ca^e 
shouM  not  have  been  allowed  to  depend  upon  tlie  vai^ue  and  eqnivc.eal  ex- 
pressions of  the  witness,  showini?  merely  his  conelusion  of  niatt.Ts  of  l;iw 
and  f  let.  If  Hertz  did  make  any  iileu'al  cnnt'  ac's,  he  violated  Mr.  Cranip'on's 
positive  instructions,  t.nl  it  is  u.ifa.-  to  tie.it  f-o  latter  as  res^wns-b'-c  for 
that  conduct. 


60 


¥  \ 


168  After  snch  an  endorsement  of  liis  character,  it  would 
seem  that  the  testimony  of  Capt.  Strobel,  even  if  it  were 
uncorroborated,  should  command  confidence. 

Mr.  Strobel,  who  had  then  acquired  the  rank  of  "  Captain 
"  of  the  1st  company  in  the  Foreign  Legion,"  and  Mr. 
Crampton,  were  again  brought  together  at  Halifax,  and 
were  engaged  there  for  some  time  in  making  further  ar- 
rangements for  recrating  within  tlie  United  States. 

Original  documents,  now  in  the  possession  of  this  Go- 
vernment, show  that  there  can  be  no  mistake  as  to  tlie  ob- 
ject of  Mr.  Crampton's  visit  to  Halifax,  and  that  it  had 

169  special  regard  to  recruitments  in  the  United  Statts  for  the 
British  service.  (82.) 

Bruce  McDonald,  who  appears  to  have  been  a  Secretary 
in  the  Executive  Departm;:nt  of  Nova  Scotia,  addressed  a 
letter  to  "■  Capt.  Strobel,  First  Company  Foreign  Legion," 
dated  "Provincial  Secretary's  office,  3d  May,  1855,"  in 
these  words : — 

"  Dear  Sir, — I  am  directed  bv  Ilia  Excellency  the  Lieu- 
"  tenant-Governor  to  introduce  to  vou  the  bearer,  Lieut. 
"  Kuntzel.  He  comes  with  a  letter  to  Sir  Gaspard  from 
"  Mr.  Crampton.  You  will  please  explain  to  him  the 
"  steps   necessary   for  him  to  take  to   secure  a  commis- 


170 


"  sion." 


On  the  13th  of  May,  the  second  or  third  day  after  Mr. 
Crampton's  arrival  at  Halifax,  J.  W.  Preston,  Lieutenant 
of  Her  Majesty's  70th  Regiment,  who  had  charge  of  the 
depot  at  Niagara  for  the  reception  of  recruits  sent  from 
the  United  !::  tates,  wrote  to  Capt.  Strobel  as  follows : — 

"  My  Deak  Strobel, — I  am  directed  by  the  General  to 
"  acquaint  you  that  Mr.  Crampton  wants  to  see  you  at  his 
"  house,  at  10  o'clock  to-morrow  morning ;  be  punctual. 
"  If  you  like,  come  up  to  my  room  at  9^  o'clock,  and  we 
"  will  go  together." 

These  letters  corroborate  Capt.  Strobel's  statement  that 
Mr.  Crampton,  while  at  Halifax,  was  engaged  about  the 


Note  82. — This  is  evidently  an  erroneous  nssumption  on  the  part  of  Mr. 
Marcy,  for  Mr.  Crampton  has  always  forbidden  any  "  recruitments  in  the 
U.  S." 


61 

recmiUnghusinesfi  within  the  United  States.  {^^)  ITo  after-  171 
wards  went  with  Cajjt.  Strobol  to  Quebec  for  llic  Biime 
purpose.  Passing  witliont  coinuient  the  i)lan  for  recrnitiiiir, 
which  Strobel  says  was  i)repared  at  the  request  of  mV. 
Crampton,  and  ai)proved  by  him  and  Sir  Gaspard  Le  :Mar- 
chant,  I  propose  to  offer  some  remarlcs  upon  tlie  instruc- 
tions furnislied  l>y  ^Ir.  Ci-ampton,  wliik>  in  the  Provinces, 
to  tlic  recruiting  agents  wlio  were  to  go  to  "  Buifah>,  ])e- 
"  troit,  or  Clevchmd,"' "  to  make  known  to  persons  in  tlie 
"  United  States  the  terms  and  conditions  ujion  which  re- 
"  emits  will  be  received  into  the  British  service."  This 
paper  will  be  found  in  the  loUers  i-eferred  to  in  Hertz's  172 
trial.  Its  genu!  oiiess,  I  presume,  will  not  be  (piestioned. 
It  is  framed  witli  great  a'lroitiie-<s  ;  and  in  it  mav  be  re-ort- 
ed  to  for  a  defence  of  Mr.  Cramptoir.s  conduct,  it  is  entitled 
to  a  carefid  consideration. 

These  instructions  show  that  the  persons  sent  into  the 
United  States  to  r<(ii^e  ri'cnnt^  tJi'i'iln  for  tlie  Foreign  Le. 
gion.  were  autlnirized  agents  of  Ih-ivish  olHcers,  and  receiv- 
ed directions  for  the  guidance  of  their  cnnduct  from  Her 
Majesty's  Minister  to  tliis  (ntveniment.  Ir  is  ihought  to 
be  unreasonable  in  this  (iovernmeiit  to  complain  of  any  of 
Her  Majesty's  officers,  because  the  agents  thus  employed 
were  "  enjoined  carefully  to  refrain  from  anything  which  173 
"  would  coii'^tittite  a  violation  of  rlie  iaw  of  the  United 
"  States."  A  similar  injunction  to  the  agents  first  employ- 
ed was  also  contained  in  the  directions  which  ])recedcd  .he 
instructions  issued  by  Mr.  Crampton  in  iVIay,  niul  ho  well 
knew  how  utterly  it  had  been  disregarded  by  then).  As 
his  visit  to  the  British  provinces  had  sjxH-ial  relation  to  the 
recruiting  service,  it  cannot  be  presumed  that  he  was  imin- 
formcd  of  what  had  then  lia})pened  to  those  agents  in 
Philadelphia,  2sew  Wu'k,  and  Boston,  througli  which  he 
passed  on  his  way  to  Halifax.  This  (iovernment  liad,  as 
early  as  March,  ordered  prosecutions  against  the  recruiting 
agents  in  those  cities  for  having  violated  the  law  of  the 


Note  63. — Tliey  show  notliing  of  tlu;  kind.  What  Mr.  Marey  noiv  calls  re- 
cruiting in  the  U.  S.,  is  any  net  of  invitation  to  foreigners  to  go  abroad  and 
then  ddermine  whctliLT  tiiey  will  enlist.  Mr.  Marcy  himsiilf  did  not  find 
Hny  fault  with  this  in  the  first  instance. 


"If 


02 


:m 


174  United  States,  many  had  been  arrested  for  that  offence, 
and  against  several  of  them  grand  jurioi  had  found  bills 
of  indictment. 

Instead  of  disoonnectiniif  hinnelf  from  tlie  procoodinjijs 
which  liad  led  to  tliis  disaslrous  result,  Mr.  Crampton  went 
to  Ilialfax  and  (Quebec  to  make  further  arrauf^enients  fur 
sending  o//<(7' ;v   /'^/V^v.v  into  tlio  United  Statos.(H4-) 

lie  could  have  had  no  sufticient  reason  to  believe  tluit 
those  wlio  received  fresh  in^trul•tio!ls,  however  cautiously 
devised,  would  i);iy  any  more  re«i:ard  to  his  injunction  not  to 

176  violate  the  law  of  the  United  States  than  Hertz  and  others 
had  done,  liis  experience.-^of  tlie  past  should  have  deter- 
red him  from  rencwiniij  the  experiment.  As  these  instruc- 
tions were  luniisheu  tu  many  agents,  they  were  doubtless 
framed  with  a  view  to  bear  a  critical  inspection,  aTid,  in 
case  of  emernjency,  tu  be  adduced  as  proof  to  show  that 
8i)ecial  regard  was  intended  to  be  paid  to  tlio  Uin'ted  States 
neutrality  law.  They  will,  however,  hardly  answer  that 
purpose. 

There  can  be  no  doubt  that  those  revised  instructions 
were  intended  to  impress  the  recruiting  agents  with  the  cx- 

176  pediency  of  greater  circuuispi'ction  in  the  business  ;  but  it 
is  evident  that  the  motive  for  this  caution  ha<l  much  more 
respect  for  the  snccess  of  the  recruiting  ])roject  than  for  the 
United  Stales  law.  This  is  apparent  from  the  following 
paragraph  of  these  instructions : — 

''  7.  It  is  essential  to  success  that  no  aMemhlages  o/"^;^/-- 
"  son-*  should  take  place  at  beer-houses,  or  other  similar 
"places  of  entertainment,  fn*  thr  jnirpoH>.  of  ddlslng  tnea- 
"  sures  for  enlistimj^  and  the  parties  should  scrupulously 


Note  84. — No  arrnngnmcnfs  wpio  ever  mndo  for  eending  any  "  rcxrruitcrs 
into  tlie  United  States." — Mr.  Craiiipton  was  perfectly  justified  in  continuing 
to  authorise  agents  to  give  information  and  assistance  to  foreigners  untd  tlie 
recruiting  establisliment  at  Halif.ix  was  broken  up.  Tlie  federal  court.s  have 
recognized  such  conduct  to  be  perfectly  legal,  ( sec  folio  "2.)  As  to  the 
trials  of  Hertz  and  Wiigner,  see  tlic  rcrn,'irk«  ante  fos.  10  to  29.  Mr.  Crampton 
could  not  have  anticipated  the  course  which  Mr.  Marcy  and  Mr,  Gushing  have 
thought  fit  to  take.  How  could  it  have  been  supposed  f  jr  instance  that  any 
American  President  would  broach  the  absurd  doctrine  lately  concocted  by 
Messrs.  Cusliing  and  Marcy  about  seducing  foreigners  to  leave  the  United 
States  t 


rt 


63 


178 


"avoid  resortin<?  to  this  or  similar  means  of  disseminating  17^ 
"the  desired  inibrrujitioii  iniHimicii  as  tlie  attentioJi  of  the 
"American  anthorities  wouUl  not  fail  to  bo  called  to  their 
" proceed! n<»:s,  which  would  iiii(loiilitc<lly  bo  rci^arded  by 
"them  as  an  attcniitt  to  cjirrv  on  recruiting  for  a  foreign 
"power  within  the  limit'*  of  the  Tnitcil  Slaiis.  ami  it  cor- 
"tainly  must  bo  borne  in  mind  that  the  institution  of  legal 
"  proceedings,  against  any  ol"  tht;  parlies  in  ([uostion,  oven 
"if  they  were  to  elude  tlie  penalty,  would  be  fatal  to  the 
"success  of  the  etdistinent  itst'lf."(Sr») 

Though  the  last  instruetions  are  a  restriction  upon  tlie 
construction  which  Lord  Clarendon  has  given  to  the  law 
and  rights  of  the  I'uited  States,  they  would,  even  if  liter- 
ally observed,  infringe  both. 

This  Government  maintains  that  In  eiwry  instance  where 
a  person,  wheth')'  (i  citizen  or  a  fitn'hjnoi',  hdn  bi'cn  hroiajht 
to  the  dcter)ni nation  to  liutcc  the  counLi  ij  for  the  purpose  of 
entering  into  a  foreig  .  service  as  a  soldier,  or  sailor,  hy  any 
inducements  (iffereil  by  recruitinfj  agents  here,  the  law  of 
the  United  States  hiXi^  been  violated. 

There  ciii-taiidy  can  he,  no  doubt  of  the  violation  of  the 
law  of  the  Tnited  Stales  in  every  ease  where  one  party — 
the  recruit — has  been  in-hoxd  hy  thi  terms  (^fered  to  him  179 
actually  to  leave  the  Tnited  States  for  the  pin])ose  of  enter- 
ing into  foreign  ndlitary  service,  and  the  other  party  has 
furnished  tlie  means  and  borne  the  expense  of  taking  him  to 
a  foreign  dej)ot  in  the  expectation  that  ho  would  consum- 
mate the  act  by  an  enlistiuerit.  It  will  not,  I  presume,  be 
denied  that  several  hundred  eases  of  this  kind  actually  oc- 
curred in  earrvinii  otit  the  scheme  of  llritish  recruitment. 
The  very  design  of  emidoying  agents  for  such  a  purpose, 
to  act  within  the  limits  of  the  I'nited  States,  involved  in 
its  consequences  an  infringement  of  tliat  law.(8C) 


Note  85. — Seo  tlic  otiicr  iiixtnictiDns  nccoinpnriyins  tliis,  espcciiiUy  the  5th, 
(fiiliosS,  9,  10),  expressly  toi bidding  tlie  making  of  nny  promise  or  con- 
tract, writtnnor  verbal,  on  tlie  subject  of  enlistment.  The  instructions  are 
plain  and  clear  when  read  toi;ether,  .-md  it  is  not  fair  to  jtick  out  one  of  the 
instructions  and  read  it  as  if  it  ^tood  alone. 

Nole  80. — There  were  no  "  recruiting  agents"  here  and  no  terms  were  of- 
fered by  the  agents  appointed  to  give  information  and  assistance. 

The  terms  offt'veJ  by  the  British  Government  were  stated  by  the  agents  ao- 


Ji-«S»- 


f 


64 


t'i 

'i^ 


^i 


180  It  is  the  soloiim  diitv  of  the  (lovornmcnt  of  the  United 
States  tu  nmintnin  this  c(»iistnu'tion  of  their  Xeutrality  Law, 
and  the  attempt  to  set  u]>  aud  Hustain  a  ditferent  one  has 
created  niucli  snr|)rist* ;  thai  it  has  been  (h)iie  by  a  friendly 
government  with  whieh  the  I'nite*!  States  are  niobt  anx- 
ious to  maintain  and  strenujtiien  the  rchitions  of  amity,  in 
the  cause  of  deep  re<;'ret. 

When  the  President  presented  the  ease  to  the  consider- 
ation of  Ilev  Mjiii'sty's  (iovernment,  with  the  assurance  that 
hehad  such  iniurnmtion  on  the  ^nl»iect  as  compelled  him  to 
believe  tliat  Hrltish  oUleers,  in  eminent  stations,  were  impli- 

181  cated  in  a  sclieme  wiiich  had  resulted  in  an  infrin«;ement 
of  the  riylits  of  the  I'nited  States  and  a  violation  of  their 
law,  and  asked  for  some  sati-^factinii  i.f  the  wrong,  he  cer- 
tainly did  hot  expect  that  the  conduct  of  those  ottieers 
W(Mjld  he  justiiird  upon  jirincijile..  which  impair  the  sove- 
reignty of  the  I'nited  States  as  an  Inde]>i'ndent  nation,  and 
by  an  interpretation  of  their  law  which  makes  it  entirely 
ini'jf't'ciii'efor  tin' pufposv  iHteiifIi(L{i^'i) 

Some  satisfaction  for  the  injury  was  eonlideiitly  expected  ; 
but  nothing  that  can  be  regarch'd  in  tliat  light  has  been  of- 

182  fered  ;  and  this  (Tovernnirnt  is  compelled,  in  vindication  of 
its  I'iu'hts  and  laws,  to  taki'  a  course  which  it  sincerely 
hiped  Her  Majesty's  (lovemment  would  have  rendered  un- 
necessary, 

Jler  Majesty's  .Minister  to  this  (iovernment,  Mr.  ('ramp- 
ton,  h'ls  taken  a  conspicuous  i);irt  in  organizing  and  execut- 
injx  the  scheme  for  recruitinjj;  for  the  P>!'itish  army  witiiin 
the  United  States. 

Were  it  possible,  with  due  regard  to  the  evidence  and 
disclosures  in  ihe  case,  U)  assign  him  a  subordinate  part  in 


ooniinii  to  tlieir  instructions  "  ns>  matter  of  irit'oniinlioii  (Jiilv,  mul  not  as 
implying  iiny  pvomisc  or  engiigcrntiit  on  tlie  f)iirt  of  those  supplying  such 
information."    See  folio  10. 

Xotf  87. — Ni  1  at  all  so.  Mr.  Murry  wliolly  nii.sreprcst.'nts  the  purpose  o 
the  law.     See  fo->.  2  to  5,  ',3, 

It  may  safely  be  asserred,  without  fear  of  contradiction,  tint  Congress  can- 
not even  now  be  persuaded  to  extend  the  provisions  of  Ihe  Aet  of  Congress 
so  as  to  make  unlawful  the  aet  of  advisiiijf,  persuading  or  assisting  a  foreigner 
or  even  a  native  bora  citizen,  to  go  abroad  to  enlist  in  foreign  service. 


h'-       II     ■■■■ 


05 


that  sdionio,  ovon  tlmt  would  not  allow  tlio  Prc.-i(l(Mit  to  183 
chiin<?e  the  course  wliicli  Iik  is  oldi^id,  un<K'i'  thc!  circtim- 
stnnceH,  to  pursue  toward  liiin.  Any  i>!irti(;iputi<>n  in  tlio 
project,  as  it  has  lii-i'ii  (K'vclopi'd,  ot"  raisiiii;  recruits  in  lliis 
country  tor  llu;  Uritisli  scrvici',  was  iiicompafiMi!  with  liin 
ofticial  relations  to  this  (iovei-nuieiit.  lli^  coniicctiou  with 
thatatl'uir  has  rcndere*!  him  an  uiiacei'[»tahl''  ropresentativc 
of  Ilor  liritannic  Maje.^ty  near  this  (tovornmcnt,  ami  you 
are  directi'd  hy  the  I*resi(ient  to  ask  llerMm- 1\ 's  (Jovorn- 
ment  to  recall  him. (88) 

Mr.  Kowecrot't.  the  P>ritisli  Consul  al  Cincinnati,  and  Mr- 
Matthew,  the  iliitisii  Consul  at  i'hi  ailelpiiia.  are  implifute  I    184 
in  the  reeruitinjj^  project  ;  and  you  are  I'ur'her  directed  by 
the  President  to  ask  lor  their  removal  tor  that  cause. 

The  persons  connected  with  the  lii'ilish  Cunsnhvie  a*  New 
York  have  heen  actively  eniiai^'ed  in  I'niilieiiij:  tlie  ^'ecrnit- 
in^;  scheme.  ^Ir.  Stanley,  the  assistant  cKrk  of  the  ( 
sul,  has  taken  a  nuuv  open  and  etli'ciivc  pait  than  the  Co  j 
8ul  liiniselt",  and  is  now  rmdi'r  an  iii<lictnient  t'"r  "'ihitinLi; 
the  law  a«i;ainst  toreii;n  recrnitinu'.  '1  hi- Consul.  Mr  Har- 
clav,  could  lint  hut  know  of  Mr.  Stanley V  eeiitiuct  in  that 
mutter,  hut  he  still  retains  him  in  the  Consulate.  18a 

Hesido  the  responsibility  that  ri;^-lit fully  attaciie-  to  ]\lr. 
Barclay  for  the  impro})er  cuiidnct  nf  an  employee  in  iii>  of- 
fice and  under  his  immediate  and  <laily  o1i-i'Vvaiii)ii.  this 
Government  is  satisfied  that  he  has,  hiniHll".  not  only  favor- 
ed the  recruitinic  t^»r  the  Hritish  army,  but  has  participated 
in  it.     Moreover,  the  inipropir  coik 


un- 


Inel 


Ml 


liaiclav  111 


and  with  which 


the  case  of  the  bark  Maury,  has  jiistl.\  ^,nven  oll'ence  to  the 
commercial  community  in  wiiich  he  i 
ho  has  otlicial  communication. 

For  these  reasons, this  Goveniment  deems  it  proper  to  in- 
struct you  to  ask  the  Government  of  (ireat  Ih-itain  to  with- 
draw Mr.  15arclay  from  the  ])ost  of  I'ritish  Consul  at  New 
York. 


)iiri>f)Re  o 


You  are  ( 


directed  hv  the  ['resident  to  rend  this  despatch 


^I'l'ss  cnn- 
e'ongi-ess 
fineigner 

■ICL-. 


Note  88.— The  return  of  the  reduced  foreigners  does  not  soein  to  be  insist- 
ed upon,  nor  any  "indemnity  for  the  past  or  socurity  for  tlie  future.'  See 
folios  147,165,  ai'J,  etscq. 

9 


tin 


C6 


186  to  the  Earl  of  Clarendon,  and,  should  he  desire  it,  to  hand 
him  a  copy. 

The  copies  of  the  orighial  documents  to  which  I  have  re- 
ferred are  contained  in  Hertz's  trial.  I  send  you  herewith 
an  autliontic  report  of  that  trial,  which  you  will  oft'er  to 
Lord  Clarendon  as  a  document  connected  with  this  despatch. 
I  also  send  herewith  a  copy  of  the  }>roceedings  of  the  Cham- 
ber of  Commerce  in  the  city  of  New  York  relative  to  Mr. 
Barclay's  conduct  in  the  case  of  the  hark  Maury.  This, 
also,  you  will  present  to  Lord  Clarendon,  as  furnishing  one 
ground  for  the  request  herein  made  for  the  withdrawal  of 

187  Mr.  Barclay. 


The  President  to  Attor fie tj- General  Cushing. 

ExEcrnvK  Mansion,      ) 
"Washington,  Aug.  (I,  1855.  j 

Tlie  reports  of  the  District  Attorneys  of  the  Southern 
District  of  New  York  and  the  Eastern  District  of  Pennsyl- 
vania, on  tlie  subject  of  tlie  levy  of  troops  in  the  Tnited 
States,  by  official  or  other  agents  of  Great  P>ritain,  are  re- 
turned herewith  to  the  Attorney -General;  and  his  opinion 
is  required  upon  the  (luestion,  wlietlier  or  not  the  acts  re- 
ported are  in  violation  of  the  municipal  law  and  of  the  na- 
188  tional  sovereignty  and  neutrality,  and  especially  upon  the 
question,  what  legal  responsibility,  if  any,  those  acts  devolve 
on  the  British  Minister  and  British  Consuls? 

Fka>'klin  Pierce. 


Mr.   Cashin(js  Rejihj. 

AlTOKNliY-GjiNKRAL's  C)rFICE  ) 

Aug.  9,  1855.  ) 
Sir, — I  have  the  honor  to  submit  herewith  the  considera- 
tions of  law  applicable  to  the  tnlhtment  of  troops  within 
the  United  States  by  the  liritish  Government,  in  so  far  as 
the  facts  appearing  in  the  documents  before  me  conceni 
the  personal  action  either  of  the  British  Minister  or  of  the 
British  Consuls  in  the  United  States. 


67 


Tliere  is  no  room  for  doubt  as  to  tlio  law  regarding  the   189 
general  question. 

In  the  first  place,  the  act  of  Congress  of  April  20,  1818, 
contains  the  following  provision  : — 

Sec.  2.  And  he  it  further  enacted,  That  if  any  person 
shall,  within  the  territory  or  jurisdiction  of  the  United 
States,  enlist  or  enter  liini^elf,  or  hire  or  retain  another 
pereon  to  enlist  or  enter  himself,  or  to  go  heyond  the  limits 
of,  or  juris<liction  of,  tlio  United  States,  with  intent  to  be 
enlisted,  or  enter  iiuo  the  service  of  any  foreign  prince, 
state,  colony,  district  or  people,  as  a  soldier,  or  as  a  marine 
or  seaman  on  lioard  of  any  vessel  of  war,  letter  of  marque  190 
or  privateer,  every  j)ersoii  n)  offending  shall  l)e  deemed 
guilty  of  a  high  misdemeanor,  and  shall  be  fined  not  ex- 
ceeding one  thousand  dollars,  and  be  imprisoned  not  ex- 
ceeding three  years. — (111.  Stat,  at  Large,  p.  448.) 

Of  course,  as  the  levy  of  trooj)S  within  the  United  States 
for  foreij^n  service  is  forbidden  bv  law,  no  such  riujlit  has 
by  executive  ]>ermission  been  given  to  (ireat  Britain.  To 
the  contrary  of  this,  the  iiritish  (Tovernment  was  expressly 
notified,  by  letter  of  Mr.  IMarcy  to  ]\Ir.  Crampton,  of  April 
28,  1854,  that  no  eidistmenls  in  the  Uiuted  States  would  be 
permitted  either  to  Great  Britain  or  to  Russia.  (Exec. 
Docs.,  1st  sec,  ayd  Engr.,  vol,  XII.,  No.  lO;?,  p.  5.) 

In  the  second  placis   independently  of  municipal  rela-   191 
tions  of  the  acts  in  (pie-^tion  they  constitute,  whether  they 
be  the  acts  of  the  Ih-iti^^h  (Jovernment  or  of  its  Ministers 
and  Consuls,  a  violation  of  the  sovereignty  and  of  the  neu- 
tral rijrhts  of  the  United  States. 

The  rnle  of  i)ublic  law  is  unequivocal  on  this  point,  and 
is  correctly  stated  as  follows,  by  "Wolfius  : — 

"Since  the  riixht  of  raising  soldiers  is  a  right  of  majesty 
which  must  not  be  violatiMl  hy  a  foreign  mition,  it  is  not 
2>ermitte(l  to  vxixe  soldirrs  on  the  ti'r/'itari/{S[y)  without  the 
consent  of  its  sovereigii."     (,Jus.  Gentum,  s.  1,  174.) 

By  Vattcl  :—  192 

"As  war  cannot  be  carried  on  without  soldiers,  it  is  evi- 
dent that  whoever  lun  the  right  of  making  war,  has  also 
naturally  that  of  raising  troi>i»s.  The  latter,  therefore,  be- 
lono-s  likewise  to  the  sovereign,  and  is  one  of  the  preroga- 


Ifote  89. — See  as  to  what  acts  constitute  this  offence,  notes  1, 16,  and  fos.  110, 

m. 


63 


!l 


i  ':. 


193   lives  of  majesty."    (Vattel,  Droit  des  Gens,  B  3,  eh.  ii,  p. 


2U3.) 


195 


* 


« 


* 


* 


"  As  the  riii;lit  of  levvinc;  soldiers  belongs  solely  to  the  na- 
tion or  the  sovereign,  no  person  must  attempt  to  enlist  sol- 
dior.>  in  a  foreign  country,  witliout  th 
sovereign  ;  anil,  even  with  tiiat  perm 


mission  of  the 
1S810U,  none  hut  vo- 


lunteers are  to  ho  enlisted  ;  for  the  service  of  their  country 


is  out  of  ihe  ((uestion  Imre, 


iind 


no  sovereign  has  a  riir 


rht  to 


give  'irseli  his  sul»iec'ts  to  another 


Wlioever  uiulertakes  to  enlist  soldiers  in  aforeign  country, 
without  the  sovereign's  permission,  and,  in  general,  who- 
ever ei)f/c  '.s  ((icini  the  .■othjeefs  of  atioi/ier  >Sf/(ft\,{dO)  violates 
one  of  the  most  s;ieiv(l  rights  of  the  ])iince  and  the  nation. 
194  This  crinu^  is  designated  by  the  name  of  I'idnirpjying  or 
man-f<tealni<i,  and  is  punished  with  the  utmost  severity  in 
every  widl  regidated  State.  Foreign  recruiters  are  hanged 
without  nurey.  aiul  with  great  justice.  It  is  not  prcsmned 
that  their  sove!\'ign  has  ordered  them  to  conuuit  a  crime; 
and  snj^j  oqng  evi-n  that  they  liad  received  such  an  order, 
tl;ev  onuht  not  to  have  olieved  it  their  sovereifjn  having 
no  right  to  eonunand  what  is  contrary  t')the  law  of  nature. 
*  "■  "■  P)Ut  if  it  appears  that  they  acted  hy  order,  such 
a  proceeding  in  a  f  ireign  sovereign  is  jnstly  considered  as 
an  injury,  and  as  asulliciei.t  cause  tor  dechu'ing  war  agaiivat 
l.iiii,  mdess  i;e  make-;  snitahle  reparation."  (Vattel,  Droit 
de-  Gens.  15.  Ill,  ch.  ii..  p.  LM>S.) 

By  Klnl.i^r:— 

'•A  ^tate  entirely  neutral  has  tlie  light  toexact,  even  hy 

leUigerent   ])o\vei"s  {\>>  not   use  its 


force  if  nec;ss!ii'v,  tliat  1 

nenti'd   ti'iritoiv  lor  the   pni'poses    of  war;  ihat   they  take 


n'H 


th"r<'fi'(,ui  DiiDtitioHN  of  war 'Aw\  itrovisions  an( 


d  oti 


ler 


Ininieiliatc  re(]iiire;nents  of  war  for  their  arnues  ;(5n)  that 
they  do  )>i.f  oiake  therr  any  military  prepai'ations,  /  )iro(liaeiits 
196  ('/'  (.'o'/r/t/'of).s  of  ti(K i,s  ;  that  none  of  their  ti'oo])s,  armed  or 
unarmed,  jiass  tiirouuih,  (.Vc,  cV:c. ;  that  they  exercise  there 
no  aci  of  hostility  against  the  ])ersons  or  j>rojterty  of  the 
stdijects  'f  the  hostile  State;  that  they  do  not  occu])y  it 
militarilv.  or  make  it  the  tlieatre  of  war."  ^Droit  des  Gens, 


]\Iod 


ernes  < 


le  V\- 


iirope,  s.  2^i) 


By  G.  F.  d(^  Alartens  :  — 

"Whilst  i".  case  of  rupture  between  two  nations  a  neutral 


yijtc  9(1. — S>. (■  iiiuarks  on  tiiis  piissn^i'  and  iis  to  itn  inapplicability  to  the 
Uniud  Stiitcs.  iio;.t8  Itl,  ro  ;   folios  24(1  et  teij. 
Xole  'Jl.— Ad  to  this  bOL-  folios  30,  254. 


69 


State  preserves  the  full  enjoyment  of  its  territorial  rights,  197 
it  can,  in  the  absence  of  treaties,  prohibit  during  the  war, 
as  in  time  of  peace,  any  passage  or  sojourn  of  foreign 
troops  ;  and  much  more,  forbid  the  ocinipation  of  its  for- 
tresses, the  recruiting,  ninsterituj  and  e,ri'rcising  troops,  and 
it  may  use  force  against  those  -who  shall  attenij^t  to  violate 
the  prohibition."     (Precis  du  Droit  dos  Gens,  s.  350.) 

By  Galiani : — 

"  All  governments  are  aecnstomcd  to  for])id,  under  capi- 
tal penalty,  any  foreigiu'r  to  nutkc  military  engagtmenta  or 
rccniit^  within  their  territory  ;  in  duiiig  ^vhich,  they  do  no 
more  than  to  sustain  and  defend  a  natural  rigiit,  and  one    jgg 
inherent  in  every  sovereignty.  '•■  '^'  * 

The  neutral  sovereign  who  leaves  his  subjects  at  liberty 
to  engage  theniselve-^  in  the  service  of  a  foreign  belligerent, 
will  not  therein  be  wanting  to  his  neutral  duties,  piovided  it 
has  been  customary  with  lii>  miti<tn  ;  if  it  has  been  usual  in 
time  of  peace,  if  it  aeeor<l«  irith  the  physical  and  political 
conditionof  the  conn  try  ;{\)'l)  if,  inline,  he  practices  in<liifer- 
ence  and  impartiality,  not  denying  to  one  belligerent  what 
he  concedes  to  the  other,  Ibit  if  a  sorcreign  has  not  been 
accustoiaed  to  (dlow  his  snhjxiK  tn  <  nlist  in  the  niilitary  or 
naval  service  of  othir  gorei  fiou  »(s,  it  may  well  be  tloubted 
whether  he  may,  I'or  the  tirst  time,  do  it  on  the  occurrence  199 
of  war  between  two  states,  each  of  which  is  in  amity  with 
him.  1  am  not  prepared  to  say  that  in  doing  so,  he  gave 
equality  of  advantage  and  t'acilities  to  both,  for  there  might 
be  inequality  in  the  need  of  ihe  hclligerents ;  for.  perhaps, 
one  of  them,  sutferin!jr  from  deticienev  of  men,  would  de- 
rive  precious  and  powerful  succor  from  such  provisions, 
while  to  the  other  it  would  he  useless  and  sn]»eitluous.  In 
my  opinion,  therefore,  this  (piestioii  comes  within  the  gene- 
ral rule  of  es-ential  neutral  duties — tiuit  is.  to  continue  in 
the  anterior  conditini,  it  being  lawful  only  to  ])er3evere  in 
what  has  been  usual,  but  unl.iwfid  to  innovate."  (Dei  Da- 
veri  de  Frincipi  Neutrals  p.  '62o,  o'JT,  'S2d.)  2OO 

By  Ilautefeuillc  :  — 

"The  duties  of  belligerents  may  bo  summed  up  in  very 
few  words.  Ihe  belligerent  ought  to  abstai?i  from  the  em- 
ployment of  all  such  indirect  means  to  molest  his  enemy  as 
in  the  accomplishment  of  their  object  would  lirst  injuriously 
atfect  a  neutral  nation,  lie  ought  to  rcs])ect.  in  the  most 
complete  and  absitlute  manner,  the  intlependence  and  sove- 


Note  92. — See  remarks  on  this  passage,  note  20. 


70 


201  reignty  of  nations  jit  peace  ;  in  a  worn,  he  oudit  to  treat 
them  in  the  same  manner  as  if  the  most  protound  peace 
continued  to  })revaih  Those  nations,  in  fact,  are  at  peace 
witli  him.  Fnllillinii-  strictly  their  (hitiea  of  neutrality,  they 
liave  the  riii'ht  to  enjoy  tiieadvantai>;es  of  their  position,  and 
to  be  exemi)t  from  all  the  evils  of  war.  The  duty  of  the 
belligerent  is  to  abstain  from  the  infringemejit  of  this  right. 
Tims,  neutral  territory  ouixht  to  be  lield  sacred  and  inviol- 
able by  natioi<-'  nt  war.  'J  hesc  last  ought  not,  on  any  pre- 
text, nor  in  nny  manner,  ti»  iiiah'  ,'«>  of  .swh  territori/  to 
subserve  theii  |t^l'pni;o^  oi  hostilities,  direelly  or  indirect- 
ly.    The  /)<(■■'■  (((/'  <)j\(i')in'i  froojjtt,  thi'  lei')/l)tif  of  soldiers, 

202  <-Vc.,  without  the  consent  of  the  sovereign,  would  constitute 
an  olfence  against  the  sovereignty  of  the  neutral  and  a  vio- 
lation of  the  duty  of  the  belligerent."— (Droits  et  Devoirs 
des  Nations  Neutres,  tonu:  1.  .'!l-_'.  ;>]:}. 

'•  As  to  the  territoiw  of  neutral  nations,  the  occurrence  of 
hosrilitit'S  makes  no  change  nor  mociitieation  of  their  rights  : 
thev  remain  inviolable  in  time  of  veace.  Their  territorv 
ought  then  to  be  sheltered  I'rom  all  enterprises  of  the  belli- 
gerent<,  of  vrhatever  nature  they  may  be.  The  eonsecpienees 
of  war  ought  lun-er  to  be  leit  by  them  dii-ectly  ;  that  is  to 
say,  no  act  of  hostility  should  be  eonunitted  aii'ainst  them 
liuder  any  pri'text. 

203  '*  iJelligerent  nation-:,  in  this  rtvj)i-ct.  have  only  the  rights 
they  p<»ssessed  in  tinn'  <>f  pt-afe,  because  war  never  inju- 
liously  alfect- nations  nt  [)eace.  J^i'liigerents  cannot,  then, 
in  any  case,  witii()ut  the  iiermi-^sinu  of  the  soverv-ign,  use 
'm^itral  ftrrlfcri, — 1  ilo  not  say  directly  for  the  operations 
of  war — luit  canno'  even  nudvo  n^e  of  it  fir  any  advantage 
whatever,  to  the  pi'ejudice  of  t'leir  enemy.  This  permis- 
sion camiot  be  granted  to  them  by  the  neutral  without  vi  >- 
lating  his  duties. 

" 'ihe  princijile  of  the  inviolabdily  of  the  territory  being 
adiint[e(l,  the  coticlu-ion.  a<  absolute  as  the  ]irineiple  itself, 
follows,  mat  a  belligi'rent  has  no  I'ight  to  use  m'Htnd  terri- 

204  ^f>'7/^  ii'  it'iy  nuinner  whatever,  without  the  ])ermissionof  the 
neutral  nation  sovereign  of  such  territorv,  and  cannot,  there- 
fore A''"y //v>»';y/.v  i'/z^vr,  and  nuircli  armies  through  it,  tVrc, 
without  this  ]K'rmissi(»n. 

"  The  neutral  has  the  incmtestible  right  to  resist  every 
attempt  the  belligerent  iuay  nuike  to  use  his  territory — to 
oppo-e  it  l)y  all  the  means  in  his  j)ower,  and  even  by  force 
of  arm<,  in  the  same  manner  as  a  eiti/en  has  the  right  to 
deiend  his  property  by  all  tiie  means  placed  at  his  disposal 
bv  tlu!  law  to  which  he  is  subject." — (Ibid,  tome  II,  pp. 
4S,  4^.) 

I  do  not  perceive  that  this  doctrine  is  explicitly  produced 


i)r;^-..<i 


'! 


n 


in  any  one  of  the  books  of  iDfcmational  law  pnhlished   20^ 
during  tlie  last  fi-w  years  in  Great  Biitain.     IVsibly  their 
silence  on  this  point  may  bo  caused  by  tho  policy  of  their 
country,  which,  nn<lor  tho  k\\\\fri  of  tlie  hoiiKo  of  Hanover 
has  frequently  relied  upon  foreign  recruits  in  time  of  war. 
However  this  may  be,  some  of  the  English  works  referred 
to  recogni/e  the  right  of  every  sovereignty  to  the  exdusive 
use  of  its  own  trritonj  cnid  remiiroK.     (Wihlnuin's  Inter- 
national Law,  vol.  L  p.  <:4.')     I'.ut,  without  adverting  to  the 
present  logical  consequence  of  tliis  right,  although  one  of 
them  discusses  fully  the  collateral  (piestion,  v}h<th>'i'  a  -state   206 
loses  its  ntutralitii  l)if  jiiniiittni'i  forfian  tn-os,  and  con- 
cludes properly  that  if  it  be  permitted   to  one,   it  should 
bo  permitted  to  each  of  tlie  resiiective  belligerent  powers. 
(Manning's  Law  of  Nations,  l»k.  liL,  ch.  1.) 

In  this  connectio!)  ihe  same  accredited  English  writer 
considers  and  confutes  the  a-sumjition,  ha>tdy  and  errone- 
ously taken  u]>  in  (ir(>at  I'ritiun.  that  some  doctrine  to  the 
contrary  of  this  is  to  be  ibund  in  Vallel.  And  u\)on  an 
elaborate  review  of  the  whole  subject,  he  concludes  thus: — 


bemg 
itself, 
/  terri- 
of  the 
there- 
,  Arc., 

every 
vy — to 
force 
ght  to 
s[)osal 
II,  pp. 


*  '•*  ^' F'orrtr//!  /rrn.'^  >>'"!/  11"^  ^>'  alloirrti  to  one  hdluj-  207 
event  while  refused  to  his  antagonist,  consistently  with 
the  dulit^s  of  neutrality.  Wlien  fr'nti  k  autecedvHt  to  tear 
permit  such  exclusive  privilege,  then  no  conq)laint  of 
breach  of  neutrality  cae  be  maintained  by  the  exciluded 
party.  I5ut  when  no  ante(;edent  treaty  exists  m/f/i  a  per- 
mlssloi)  iroii/d  he  a  rinlat'niii  (-f  in  utrat'ti/,  the  principles 
of  which  deieand  the  ^tricte>t  aitstinence  from  a'^sistance  to 
either  jjarty,  and  of  course  will  imt  admit  tluit  exclusive 
privileges  in  so  important  a  )>articul;ir  shoidd  he  granted  to 
one  belligerent.  Nor  lune  the  i-ustonis  >.i^  Kuro[»e,  derived 
from  the  i>racticesof  tlu^  midilleages,  esrablished  any  usage 
that  prevents  this(juestion  from  being  settled  in  acc(U"dance  208 
with  the  dictates  of  reason,  or,  in  otlu-r  words,  with  the  law 
of  nature." — (Mamung's  Laws  of  Nations,  p.  l^jO.) 

Mr.  Manning's  reasoiung  is  conclusive,  as  iar  as  it  goes; 
and  the  imperfection  of  other  English  law  hooks  in  this  re- 
spect is  of  no  account,  as  against  the  general  authority  of 
the  expounders  of  international  law  in  all  the  rest  of  Chris- 
tendom. 

Misconstruction  has  also  been  placed  on  the  fact  that 
Bynkei'shoeck  maintains  the  riijht  of  private  or  voluntary 


1 


i- 


SO9  egepatriation,  itinfor  the  purpose  of  foreign  military  service. 
(93.)  But  lie  d'es  not  express  or  countenance  the  thought 
that  a  foreign  belligerent  may  recrt'/it  soldiers  in  a  neutral 
country  without  the  consent  of  its  sovereign.  On  the  con- 
traiy,  he  exhibits  in  full  the  legislavion  of  the  United  Pro- 
vince*, according  to  which  it  was  a  .'apilai  (/il'ence  to  make 
enlistments  in  ihc  country  vdthout  co?>^^'ni  of  the  Siatos 
Generah     (Qua  -t.  Jur.  Publici,  lib.  I.,  c.  22.) 

Besidt^  Grear  Britain  has  by  lu^^r  own  lo^ifihwion  -,ai).- 

210  tioned  and  adoj-ted  the  nile  of  pu1)]ic  law,  by  onactiog 
that  if  any  perso')  whatever,  witliin  ihe  IT:>ited  Kingdom, 
or  in  any  part  of  the  domiiiio;.:i  of  Great  Britain,  sliall  hire, 
engage,  retain  or />;•(>:?«>'«,  or  ^bal!  attcjniU  or  endoavoi  to 
hire,  retain,  engage  or  procure  uxy  peiron  whatever  to  e.n- 
list,  or  to  c'-iter  or  engage  to  cnlisr,  jis  an  oitieer:  , 'jidier, 
saikir  or  marine,  cither  on  land  or  fnvd  serrice,  for  or 
uivi.er,  oi'in  aid  oi  any  foreign  prince  or  government,  or  to 
go  or  agree  to  go,  or  embark  froin  any  place  in  the   British 

211  domiui  >'i3,  foi  the  purpose,  or  with  tlie  intent  to  be  so 
e?i1ist«Hl,  entered  or  engaged  as  aforesrnd,  every  pereon  so 
off(;nding  shall  be  deemed  guilty  of  a  suisdemcanor,  pun- 
ishable by  fine  or  imprisonment,  at  the  discretion  of  the 
court  having  jurisdiction  of  the  act.  (Act  51>,  Geo.  III., 
ch.  69.) 

We  in  the  United  States  acting  in  the  nense  of  natural 
right,  and  following  the  rules  of  public  law  as  explained 
by  the  jurists  of  continental  Europe,  aastrteil  and  established 

212  tf^is  dociri7ie  (9  A)  at  a  very  early  period,  in  ep})Osition  to  the 
undertaking  of  the  French  Government,  through  its  Minis- 
ter, M.  Genet,  to  man  or  equip  cruisers  within  the  United 
States.  (Mr.  Jefterson  to  M.  (ienet,  .lune  17,  1793,  Ame- 
rican State  Papers,  For.  Aft',,  vol.  I.  p.  154.)  And  our 
judicial  text  books  are  full  and  explicit  on  the  same  point. 
(Wheaton,  by  Lawrence,  p.  491 ;  Kent's  C)m.,  lee.  vi.)  It 
is  obvious  to  the  most  superficial  reflectio  1  that  no  distinc- 


Note  93.— See  extract  from  Bynk,  folio  300. 

Note  94. — The  United  States  did  not  assert  the  doctrine  now  contendtd  for, 
▼iz :  that  it  is  an  ofifencc  to  invite  foreigners  to  leave  the  United  States  to 
■erve  la  foreign  armies. 


73 


/  34rvice. 
thought 
neutral 
the  con- 
ted  Pro- 
to  make 
e  States 

J  n  acting 
ingdom, 
all  hire, 
oavoi  to 
cr  to  «n- 
.  .Toldier, 
,  for  or 
lit,  or  to 
IJritieh 
:o  be  so 
ereon  so 
or,  puii- 
1  of  the 
eo.  III., 

natural 
plained 
ahliahed 
to  the 
8  Minis- 
United 
3,  Aiue- 
^nd  our 
ic  point, 
vi.)    It 
distinc- 


enH«d  for, 
SUtw  to 


tion  of  principle  exists  in  the  levy  of  a  military  force  in  218 
the  neutral  country,  as  between  the  land  and  sea  Bcrvice ; 
and  if  Great  J^ritain  may  raise  within  the  United  States 
volunteers  ibr  licr  land  f^ervice,  so  Kussia  may  rai^c  them 
for  her  marine  service;  that  i«,  may  fit  ou:  privateers  in 
our  ports  ;  and,  indeed,  if  wc  grant  or  permit  the  former 
privilege  to  Great  Britain,  we  must  in  like  manner,  in  or- 
der to  be  inii)artially  neutral,  concede  the  latter  privilege 
to  Ilnssia. 

And  it  is  equally  obvious  that  foreign  recruiting  cannot 
be  forbidden  or  pfiinitted  under  the  iiiHuence  of  any  as-  214 
sumed  national  sympathies  or  anti])athie^.  Individual  or 
national  preferences  are  quite  immaterial  in  such  a  ques- 
tion. The  United  States  cannot,  either  lawfully  or  honor- 
ably, practice  a  stimulated  neutrality  ;  nor  can  a  dissembled 
alliance  be  claimed  oi  expected  from  us,  either  l)y  Great 
Britain  or  by  llussia. 

From  the  well  established  rules  and  principles  of  law, 
then,  it  is  plain  to  conclude  : 

1.  The  acta  of  enlistment  in  question  are  contrary  to  the 
municipal  law  of  this  country,  and  indictable  us  a  high  mis-   215 
demeanor. 

2.  Those  acts,  if  permitted  to  one  belligerent,  must  bo 
permitted  to  all,  in  observance  of  impartial  neutrality. 

3.  Being  against  law  in  the  United  State-,  and  therefore 
not  permitted  to  Great  Britain,  if  undertaken  by  her  as  a 
government,  they  afford  just  cause  of  war,  being  a  direct- 
national  violation  of  the  territorial  sovereignty  of  one  na- 
tion by  another. 

4.  AVhatever  agents  of  the  British  Goverimient,  whether 
official  or  unofficial,  acting  voluntarily  or  by  orders  have  gjg 
participated  in  such  acts,  are  not  oidy  guilty  of  a  crimintd 
infraction  of  the  statute  law,  but  also,  in  the  Janguajije  of 
Yattel,  of  violating  one  of  the  most  sacred  rights  of  the 
nation. 

I  presume  that  if,  in  the  present  case,  the  British  ^Minis- 
ter  imagines  that  the  acts  performed  under  his  direction 
were  not  contrary  to  the  municipal  law,  it  must  be  on  the 
.ground  that  the  recruits  were  not  completely  etdlded  in-  the 
'  United  Slates— t\x2it  is,  did  not  here,  in  aliform,  enter  the 
fnilitary  service  of  Groat  Britain.    Tiiat  assumption  is  al- 
together erroneous.    The  statute  is  express  that  if  any  per- 
10 


F.l.yi' 


\h-i^: 


74 


217  eon  shall  liire  or  retain  another  person  to  go  beyond  the  limits 
or  jurisdiction  of  the  Fnitod  States,  with  intent  to  bo  en- 
listed or  entered  into  the  service  of  any  foreign  State,  he 
shall  be  deemed  guilty  of  the  defined  misdemeanor. 

It  is  possible,  also,  that  he  may  have  supposed  that  a 
solemn  contract  of  hiring  in  the  United  States  is  necessary 
to  consiitute  the   offence.    That  would  be  mere  delusion. 

The  words  of  the  statute  arc,  "  hire  or  retain."  It  is  true, 
our  act  of  Congress  does  not  expressly  say,  as  the  British 
act  of  Parliament  does,  "  whether  any  enlistment  money, 
pay  or  reward  shall  have  been  given  and  recf^ived  or  not," 

218  (Act  59  Geo.  III.,  chap.  GO,  sec.  2,)  nor  was  it  necessary  to 
insert  these  Avords.  A  party  inay  he  retained  hy  a  verbal 
promise,  or  by  invitation,  for  a  declared  or  known  purpose. 
If  such  a  statute  could  be  evaded  or  set  at  nought  by  elabo- 
rate contrivances  to  engage  without  enlisting,  to  retaiii 
without  hiring,  to  invite  without  recruiting^to  pay  recruiting 
money  in  fact,  but  under  another  name  of  board,  passage 
money,  expenses,  or  the  like,  it  would  be  idle  to  pass  acts  of 
Con^/'t'ss  for  the  punishment  of  crime  or  any  other  offence.(95) 


Xotc  95. — Mr.  Cusliing  would  find  it  difficult  to  cite  nny  legal  authority  for 
the  proposition  that  there  can  bo  a  hiring  or  retainer  without  a  contract  or 
engagement.  Moroos'or  he  has  to  avoid  the  eti'ect  of  the  early  correspondence 
between  Mr.  Buchanan  and  Mr.  Marry,  and  especially  of  that  between  Mr.  Bu- 
chanan nud  tiie  British  (Government,  wherein  Mr.  Buciianan  contents  himself 
with  infjuiring  "  how  far  persons  in  official  station,  under  the  British  Govern- 
ment have  acted,  whether  with  or  without  its  ajiprobation  either  in  enlUling 
persons  within  the  U.S.  c)r  f»((7a(;i/i5r  them  to  proceed  thence  .)  the  British 
provinces  for  the  purpose  of  being  thorc  enlisted."    (folio  (lO.) 

Here  Mr.  Buchanan  a.ssumes  that  there  can  be  no  ground  of  complaint  unlesi 
persons  had  been  engaged  to  jirocecd  from  the  U.  S.  to  the  British  i)ro?ince8 
for  the  purpose  of  being  there  cnli!*ted.  He  does  not  pretend  to  say  as  Mr. 
Gushing  docs  that  an  invitation  to  come  to  Canada  is  a  hiring  or  retainer 
within  the  meaning  of  the  Act  of  Congress.  That  was  reserved  for  Mr.  Gush- 
ing to  propound,  but  the  discovery  is  made  a  little  too  late  for  the  purposes 
of  this  correspondence. 

As  to  the  words  quoted  by  Mr.  Cufhing  from  the  British  Act  of  Parliament, 
nobody  pretends  that  they  would  make  any  difference,  and  he  has  merely  con- 
jured \i\>  an  imaginary  argument  for  the  sake  of  refuting  it.  Neither  does 
anybody  say  thot  parlies  could  i)0  lawfully  tngaf/rd or  retained  logo  to  the 
British  provinces,  having  an  mtention  to  enlist  on  their  arrival.  But  it  is 
contended,  notwithstanding  Mr.  Ctishing'a  jumble  of  the  three  things  to- 
gether,  that  on  engagement  or  retainer  is  quite  different  from  an  invitation, 


w  ;i 


75 


However  this  may  be,  and  if  such  were  the  thought  of  219 
the  British  Government,  it  has  notheen  successfully  carried 
out ;  for  on  the  evidence  hefore  ?n<',  hiclurling  the  general 
instructions  of  the  British  Minister,  and  his  direct  corres- 
pondence with  the  reeruitinf;  oflicers  in  the  United  States 
and  others,  my  opinion  is  positive,  that  the  parties  have 
made  themselves  amenable  to  the  penalties  of  tliu  statute, 
and  may  be  convicted  before  ;  iv  competent  court  of  the 
United  States. 

It  is  further  to  be  observed,  in  conclusion  of  this  branch 
of  the  subject,  that  whether  the  acts  of  the  British  Minister 
and  his  agents,  in  recruiting  troops  within  the  T'nitod  States, 
do  or  do  not  come  within  the  technical  provisions  of  the 


and  althougli  he  may  not  perceive  the  ilifTercnco,  it  is  one  which  will  be  pretty 
generally  recognised  as  well  by  lawyers  ns  the  public  at  large. 

According  to  Mr.  Gushing,  if  I  pay  the  price  of  tiie  passage  of  an  Kniigrnnt 
to  Canada,  knowing  that  he  intends  to  i-nUst  wlieii  hi?  gels  there,  I  um  pay- 
ing "  recruiting  money,"  and  it  may  bo  adinitttd  tlint  in  one  sense,  tliis  state- 
ment is  correct,  for  if  the  Emigrant  enlists  in  the  Uritish  armj-  the  force  of 
Qreat  Britain  is  recruited  to  tliat  extent,  ami  I  liave  nidod  in  sncli  recruit- 
ment. But  how,  in  the  name  of  common  seii.'^e,  can  it  be  i)retended  that  I 
have  "  hired  or  retained"  the  man  to  go  ?  Is  a  penal  Statute  or  any  other 
Statute  to  1k)  construed  in  that  way?  Can  it  be  reasonably  supposed  that 
Congress  intended  to  prohiliit  such  acts,  ami  yet  with  the  English  Statutes 
before  them  contented  tiiemselvcs  with  prohibiting  in  terms  acts  of  liiring  or 
retaining,  saying  nothing  about  persuasions  or  inducements  <  If  Mr.  Cusliing's 
doctrine  were  correct,  it  wouhl  bo  idle  to  have  rules  for  tiie  construction  of 
■tatutes,  and  equally  idle  to  attempt  to  judge  of  the  meaning  of  Legislative 
enactments  by  reference  to  the  words  used  or  the  ndschief  intended  to  be  re- 
medied. And  any  person  might  be  subjected  to  three  years  imprisonment  for 
an  act  innocent  in  itself,  and  even  laudable. 

It  was  correctly  stated  in  the  first  letters,  written  by  Mr.  Marcy  and  Mr. 
Buchanan  on  this  subject,  that  the  true  object  of  the  Act  of  Congress  was,  to 
maintain  the  neutral  relations  of  this  country  with  other  powers,  and  it  was 
contended  limt  such  neuiraiity  would  be  compromitted  by  permitting  either 
perfect  eidistnients  in  the  U.  S.  or  incipient  enlistments  here,  /.  e.  contracts  to 
go  uoroa.l  for  the  purpose  of  being  there  enlisted.  That  was  the  true  ground 
to  take,  and  we  may  attribute  the  abandonment  of  it  to  Mr.  Cushing's  unfor- 
tunate discovery  of  the  passage  in  Vattel,  about  enticing  subjects  away  from 
their  allegiance.  The  misnpplication  of  this  doctrine  to  Republican  America 
has  led  to  the  protracted  discussion  before  us— but  for  that  the  matter  would, 
in  all  probability,  have  been  allowed  to  rest  when  the  British  Government 
declared  that  they  had  not  authorized  any  contracts  to  be  made  in  the  U.  S. 
and  would  even  abandon  the  practice  of  inviting  enlistments  ia  the  British 
proviuces, 


re 


IlliVl 


202  act  of  Congress,  is  altogether  immaterial  to  the  question  of 
iutcrnatiorial  riglit,  ns  het\ve?n  thi;^  government  and  that  of 
Great  Itritain.  li\  by  inf/rniowi  evcf^iann  of  the  h'itet'  of  a 
penal  statuf,'^  iuteiuled  only  for  private  nialelactorB,  the 
Brititih  Government  shonhl,  nevertheless  ^'''/y  iroops  here, 
the  fact  of  the  statute  heing  thnn  dofeateil  and  trami>led 
undor  f  )(>t,  woidd  serve  only  to  augment  the  ptihlie  \vroii<r. 
Supi»o.Ac,  for  instance,  that  the  British  (iovernmeut  shall 
have  said  t<>  its  othcers,  civil  or  military,  in  tlie  Ihitish 
North  American  provinces,  and  to  its  diplomatic  or  consu- 
lar agents  in  the  United  States — "You  will  procet'd  to  v«he 

221  so  mani/mn>  hi  f/t,;  Ihntod  States;  hut  rememher  that  to 
do  so  is  forbidden  hy  the  municipal  law  of  that  country, 
and  i*  indictable  as  a  misdemeanor ;  you  will  tliorefore  take 
care  to  proceed  cautiously  in  this,  so  as  not  to  incur  the 
penalties  of  the  statute."  (i)t))  Such  instructions,  while  they 
migiit  have  the  ^;//'< ''/  of  rai King  the  froop.^,  asdoired  by  the 
British  (iovernment,  without  its  agents  incurring  the  jienal- 
tie8  of  the  statute,  would  but  constitute  a  more  Ihigrant  and 
a5:giavate(l  violation  of  ihe  national  dignity  ami  the  sove- 
reiirn  rights  of  the  United  States,  In  ti  ntli,  the  ntdtnte  in 
this  inattev  is  of  but  seeondari/  acumui.     The  main  con- 

222  sideration  is  the  sovereign  right  of  tlie  Unite  1  States  to  ex- 
ercise comjdete  and  exclu>)ive  jurisdic*ii>ii  within  their  own 
territory;  to  remain  strictly  neutral,  if  they  jdease,  in  the 
face  of  the  warring  nations  of  Europe  ;  and  ofeouise,  nt»t  to 
tolerate  enlistments  in  the  country  by  either  of  the  belhge- 
rents,  whether  for  land  or  sea  service.  If  there  be  local 
statutes  to  punish  the  agents  or  partie-i  to  sucli  enlistments, 
it  is  well ;  but  that  is  a  domestic  (piestion  for  our  considera- 
tion, and  does  not  concern  any  foreign  government.  All 
which   it  concerns    a    foreign    government   to   know    is, 


EiJ 

cl. 

rec 

Pr 

J. 


Note  06. — Tills  absurdity  existe  on'y  in  Jlie  mind  of  Mr.  Cusliiii^,  and  liin 
must  l)c  bad  ciiKG  to  maintain  when  we  find  hini  rompeilpd  to  resort  to  8u<'h 
astylfi  of  argumentation.  Tiif  Hritish  Government  instead  of  sayina;  "  you 
will  prorcpd  to  laise  so  many  intu  in  the  U.  S.,"  said,  you  will  will  take  care 
not  to  raise  any  men  in  the  IT.  S.,  hut  you  arc  to  inform  people  there  that 
we  invite  them  lu  come  to  the  British  provinces  to  enlist,  and  you  may  os- 
sist  such  of  them  as  desire  to  come  here,  but  the\  .imst  be  under  no  obliga- 
tion whatever  to  enlist  on  ornviug  herj. 


it! 


7T 


con- 
ox- 

own 

II  the 

.t  to 

i:ge- 

ocal 

u'lits, 

«K'i.i- 

AU 

is. 


11(1  hii 

8U<'h 

"  50U 
C!  care 
e  Dint 
ly  i>8- 
bliga- 


whother  we,  a<^  a  govormn  portin't  sucli  ai'lstment^.  It  233 
18  bound  to  ask  lUM-miHsioii  ofiis  hotoro  e.>niinLr  into  our  ter- 
ritory to  rainc  tt'oopti  I'or  its  own  si>rvi(>o.  It  haw  no  business 
to  inquire  wliutlior  lucre  bestalutu.-*  ou  tlio subject  or  not.  (97; 
Loast  of  all  lias  it  the  ric^ht  to  take  notice  of  the  statutes, 
only  to  see  how  it  may  derive  moans  by  wliioh  to  evade 
them.  Instead  of  this,  it  is  bound  not  «.iily  by  everv  con- 
elflcration  of  international  comity,  but  of  the  istrictest  inter- 
national law,  t(t  respect  the  sovereignty  and  regard  the 
l)ublic  policy  of  llie  United  Slates. 

Accordingly,  when,  at  the  coinmencenient  of  the  great 
European  struggle  between  Kngland  and  Franco,  near  the  224 
close  of  the  last  century,  the  French  Convention  assumed  to 
recruit  inarine  forces  in  the  I'nited  States,  it  was  held  bv 
President  Washington,  and  by  his  Secretary  of  State  (Mr. 
Jeftersouj,  as  exiiJained  in  the  correspondence  herein- 
before qiu)ted,  lliat,  by  the  law  <»f  nations,  in  virtue  of  our 
sovereignty,  and  witliout  .9/(;y7>i"/ij7  fo  oiad  muniripal  laws 
on  the  suljject,  we  had  iull  right  to  repress  and  repel 
fori'ign  eidistinents,  ami,  e  converso^  that  the  attempt  to 
make  any  such  enlistments  was  an  act  of  gross  national 
aggression  <»n  the  I'nited  Slates.  226 

When  a  foreign  government,  bv  its  agents,  enters  into 
the  United  States  to  perform  acts  in  violation  of  our  sove- 
reignty, and  contra  I'll  to  our  public  ])olicy,  though  acts  not 
made  pemd  by  municipal  law,  that  is  a  grave  national  in- 
dignity and  wrong.  If,  in  a<idition  to  this,  such  foreign 
governnuMit,  knowing  that  penal  statutes  on  the  subject 
exist,  deliberately  undertakes  to  evailc  the  inunieijial  Imo, 
and  thus  to  batHe  and  bring  into  disrespect  the  in<-';rnal  ad- 
miidstration  of  the  country,  in  such  case  the  foreign  gi  vern-  226 
nient  not  only  violates,  but  insults,  our  national  sov-cA;ignty. 

I  repeat,  then,  that  if  it  were  to  bt;  suppose(i  that  the 
British  (lovernment  had  so  far  forgotten  what  is  due  to  its 
own  dignity  as  to  instruct  its  agents  within  the  territories  of  the 
German  Bund,  in  the  Netherlands  and  in  the  United  States, 


Note  97. — It  is  sufluiont  f"  observe  upon  wliat  is  said  tiere  and  elsewhere 
about  euliatinenta  that  none  were  umde  by  the  British  Government  in  tha 
U.S. 


78 


i>-i 


227  to  nih'st  recruits  without  rospoct  for  the  loc(j"  'ovrv.-»i^nty, 
but  with  earo  to  avoid  or  evade  tho  letter  of  )u  al  stntuten, 
instead  of  diiuiui^hiiii;,  that  v/ouM  aggravate  the  injn.tice 
and  the  illojLralify  of  the  proceeding  in  tiie  eye  of  tht;  law  of 
nations,  and  the  intensity  ot'tiie  pnhlie  wrong  as  regards  the 
neutral  States  thus  eoiiverted,  without  their  ermsent,  into  a 
recruiting  ground  for  the  luinits  ot  (ireat  Hritain. 

Such  instructions  wotdd  he  tlerogatory  to  the  ])id)lic 
honor  in  another  res[>ect.  Tiu'V  presume  that  the  United 
States,  without  becoming  the  open  ally  of  (ireat  Britain, 

//.» ferrifon/  for  bclUqtrcnt 


228 


ill.  b 


at  thi 


of  ffs  Territory jor  oetnijerci 
jxtrpones,  while  jirofessing  neutrality,  thus  carry  on,  as 
already  intimated,  a  dishunorahio  war  in  ilisguise  against 
Russia.     ({«^.) 

It  appears,  however,  that  tlut  liritish  (tovermnent,  find- 
ing it  impossible  to  keen  the  ranks  of  its  army  tilled  by 
voluntary  enlistments,  and  being  loath  to  encoimter  the 
responsibility  of  a  law  for  conscription,  <>r  drafts  on  militia 
for  periodical  service  of  its  able-bodied  men,  or  for  any 
other  systematic  method  of  raising  troops  from  its  own 
229  population,  introduced  into  Parliatneiit  a  bill  ontitled  "  An 
act  Xo  permit  forclijner.'i  to  he  enli.'itol  \\\v\  to  serve  as  otH- 
cers  aiul  soldiers  in  Her  Miijesty's  forces,"  but  which  jm^ 
i)k  fad  a  hill  to  authorize  the  yorernnunt  to  emjfloi/  agents 
to  carry  on  recruiting  service  in  the  neutral  states  of 
Europe  and  America.     (!*l>) 

The  law   was  earnestly  objected  to  in  its  progress,  as 


Note  98. — If  onlistineiits  in  tlie  U.  S.  by  tla^  Hiitisli  Oovernment  Imd  lieon 
permitted,  it  mi^lit  linve  bccii  sniil  that  tlit>  KoveriimoiU  of  tlia  l'.  8,  had 
connivod  at  tl>c  use  of  its  terrilori;  for  bi'llif^cicnt  luirpose."*,  but  no  such  com- 
plaint, could  bi'  frrourid.-d  on  tiii!  ]>ublic;iti<)n  <«f  iKlveitisteiiicnts  in  the  U.  8. 
by  the  Uiitis.ii  Govointnenf,  invitin;^  i'nii>?rfttii)i)  into  the  Hritish  provinces, 
of  persons  desirous  of  lighting  ngainst  Itussiu 

Xute  99. — Tiie  liill  hero  refcrrfd  to  wjis  necossnry  to  authorize  the  enlist- 
nicnt  of  foreignors  in  the  DritJMh  army,  for,  ulthougii  under  the  political  sys- 
tem of  the  U.  S.,  foreigners  mny  hovvo  in  the  armies  of  tin;  Uepub  ic  (see 
folio  .S09),  the  Ikitish  8<jvereign  Ims  no  right  to  create  an  army  composed 
wholly,  or  in  part,  of  foreigners,  without  the  autiiority  of  Parliament.  Mr. 
Gushing  with  eharacter<stic  recklessness,  assumes  that  this  Uill  was  for  a 
purpose  wholly  different  from  that  stated  on  its  face,  and  tiiut  it  was  passed 
to  direct  a  violatiuu  of  the  laws  of  foreign  countries. 


70 


insultinp;  to  ncntrnl  stntcs  and  dornp^ntorv  to  t1»e  national   230 
difjjnity ;  but  wa<  pusso"!,  iu>vortlH'lcsi,  on  the  22(1  of  Dtcoin- 
ber,    1854.      (IIuuBanrs    Ddnitts,   third  serieia,  vol.   136, 
passim.) 

At  an  oarly  duv  nfttn*  tho  p.issniijo  of  tliM  net,  measures 
were  trtk(»n  to  recruit  otticers  mid  in.'ii,  for  a  proposed 
foreign  le<j;ion,  in  the  ITiiited  States,  those  measures  being 
jmblitdy  taken  uncU-r  tlio  oflicial  responsibility  of  Sir 
Gaspard  Le  Marchant,  l,i('utennnt-(tovernor  of  tho  Pro- 
vinco  of  Nova  Scotia.  A  niilitary  <h''p!>t  was  established  at 
Halifax,  for  thi»  rec(»]»tion  and  enri>biient  of  recruits;  and 
Mr.  Howe,  a  nientber  of  the  Provincial  (Toverinnent,  witii  231 
other  agents,  came  into  the  I  tiited  Statt>s  to  nudve  arrange- 
ments for  C)ifj(iiji)uj  and  forwardiui^  the  )yf'i'uits,  ehietly 
from  Ht)ston,  New  York-  and  PhihitK-iphia.  Subseijuontly, 
corresponding  arrangements  were  made  for  collecting  and 
forwarding  recruits  from  tho  Western  States,  by  ButValo  or 
Niagara,  througli  I'pper  ('atunhi.     (!(''») 

Tliese  acts  were  connuenced  and  prosecuted  with  printed 
hand-hillK  and  ct/nr  nminfi  of  adiwtimment.  and  recruits 
were  collected  in  depots  at  New  York  and  elsewlierc,  and  232 
regularly  tran-yxtrtedfo  Canada  or  N^om  Scotia,  with  undis- 
guised notoriety,  as  if  the  United  States  were  still  a  constitu- 
ent part  of  the  British  Kmpire.  Of  course  they  attracted  great 
attention,  atul  the  various  measures,  whetlier  legal  or  politi- 
cal, proper  to  put  a  slop  to  them,  wore  instituted  by  your 
direction,  through  the  instrumentality  of  the  foreign  or 
legal  departments  of  the  government  of  the  United  States. 

In  the  course  of  the  investigations  which  ensued,  among 
the  facts   broui^ht  to   light  are   some  in   the   documents 


Note  100.— It  will  bo  observed  tlint  Mr.  Cusliing  horo  asserts  that  the 
British  agents  engnged  ami  i'orwnriK'il  recruits,  whilst  the  fact  is  tliat  there 
were  no  rt-rruits  nt  nil  in  the  U.  S.— the  persons  forwarded  were  not  recruits, 
not  hoving  enlisted  themselves,  timl  bein;,'  at  perfect  liberty  to  decline  doing 
80,  on  their  anivnl  in  the  Biiiish  provinces,  nor  were  luiy  "engagements" 
oiade  by  or  with  the  persons  f.)rwurde<l,  that  they  would  go  to  the  British 
provinces  at  oil— lliey  could  if  tiiey  chose,  turn  l)ack  at  any  stogc  of  the 
journey,  and  that  without  violating  any  promise  or  engagement.  At  oil 
events,  if  that  was  not  the  ease,  the  agents  simply  violated  tlicir  instruc- 
tions, and  no  blomo  can  be  rightfully  attached  to  the  British  Government 
if  they  did  ao. 


80 


!ti^ 


233  refeiTed  to  me,  vliich  unequivocally  tend  to  implicate,  not 
only  British  Consuls,  but  the  Britisli  Minister  himself,  in 
the  unlawful  transaction  in  question  ;  and  so  call  for  in- 
quiry as  to  the  rights  of  the  government  in  reference  to 
them  and  tl  "''•  government. 

In  the  application  of  the  general  rules  of  law  to  the 
offences  committed,  it  is  necessary  to  distinguish  between 
the  case  of  any  of  the  Consuls  and  that  of  the  Minister. 

The  several  District  Attorneys  of  the  United  States, 
within  whose  jurisdiction  respectively  the  cases  occurred, 

234  very  properly  assumed  that  the  Consuls  were  subject  to 
indictment  for  infraction  of  the  municipal  law,  and  have 
proceeded  accordingly,  indictments  having  already  been 
found  in  the  Soutliern  District  of  Ohio  agaii.ot  the  Consul 
at  Cincinnati,  and  in  the  Southern  District  of  New  York 
against  an  officer  of  the  Consulate  of  New  York. 

(The  rest  of  the  opinion  relates  to  the  liability  of  the 
Consuls  to,  and  the  exemption  of  the  Minister  from,  crimin- 
al prosecutions.) 


81 


236 


In  this  controversy  there  are  questions  of  fact,  and  ques-  235 
tions  of  law. 

It  is  adiiiiffcd  tliat  tlie  British  (Government  did  authorize 
its  a<^ents  iu  tlie  raited  States  to  invito  and  induce  resi- 
dents of  the  United  States  to  go  ahroad  to  enlist  hy  giving 
them  information  and  assistance. 

It  is  denied  tliat  any  ai^ents  of  tlie  Government  were  au- 
thorized to  do  more  than  that,  and  it  is  proved  tliat  the 
agents  were  advised  that  the  Ih-itish  (lovernment  would  not 
interfere  in  their  behalf  if  tliey  should  violate  their  in- 
structions, (f  )li()  i>.) 

It  is  charged  by  Mr.  .Mai'cy  that  tiu'  agents  of  the  l^riti^■h 
(ioverument  did  actually  hire  (n- retji.iit  iktsous  to  go  ahroad 
to  enlist  in  the  sense  in  which  tlmse  words  were  used  in  Mr. 
Marcy's  first  letter,  (tbljo  ,")(!.)  lie  insists  that  iiirings  and 
retainiTS  were  rlfected  by  int'n  who  were  not  irresponsible 
and  unauthorizcMJ  persons,  but  who  were  the  agents  of  the 
Dritish  (Trovei-nuit'iit. 

To  this  it  is  replied  that  those  agents  were  otdy  authoriz- 
ed to  give  inCuruiation,  advicr.  and  a^si:  ranee  ;  tliat  they 
wore  not  aulhoriziMl  to  liirr  or  i-ctain  parties  lo  go  abroad; 
but,  on  the  contrary,  were  expresssly  forbidden  to  do  so, 
(folio  1>.) 

These  arc  the  (piestions  of  fact,  and  it  will  be  seen  that 
Mr.  Marcy  is  r'early  wrong  in  a-^Miniing,  a<  lie  has  done, 
(folio  Il'S)  that  lb,'  Ih-itish  (oneruim-nt  liavc  adndttedthat 
thev  diret'tv'd  and  authorized  tlicir  agents  to  do  what  could 
not  l)e  done  witi'ont  a  vi(dation  \A'  the  law  of  the  ITnited 
Slates. 

Hut  Mr.  Marcy  insists.  Jsily.  That  even  if  the  British  Go- 
vernment are  not  to  be  hel<i  re'^ooiif-ible  for  what  is  alleged 
to  have  bei'u  ^h^uo  by  their  a.geuls,  contrary  to  instructions,  238 
still  the  agents  wimv  authori/.eil  to  vi.date  the  law  of  the 
Ignited  States.  i>y  inviting,  pi-rsuading,  and  assisiiiig  resi- 
detits  of  the  I'nirod  States  to  go  abroad  with  the  intention 
to  eidist  on  their  arrivid  in  the   I'ritish  Provinces. 

2dlv.  That  even    if  by  those  acts  the  letter  of  the  law 
lias  not  been  broken,  yet  it-^  s])iril  has  been  violated  and  its 
object  defeated ;  and, 
11 


237 


82 


m^ 


23i)  <^<lly-  Tlijvt  even  if  the  British  agents,  in  giving  such  in- 
formation and  assistanee,  did  not  \  ioh\te  eitlier  the  letter  or 
spirit  of  tlie  mnnioipal  hiw,  their  acts  were  still  a  hreaeh 
of  international  law. 

The  qnestions,  tlien,  to  he  considered  are — 

l.^tly.  Whether  Congress  inUnded  to  prohihit  the  giving 

of  information  or  rendering  of  assistance  to  ])ersons  desi- 

rons  of  o't.iiiu;  1)ev»Mid   tht!  linuts  of  tlie  Initod  Stales  for 

the  imrpdse  of  eidisting, 

2(lly.   Whetlicr  the  J'rifish  Govennnent  violated  the  law 

of  nations  hv  the  ('mi)l(ivment  of  aiients  to  ii'ive  siicli  intbr- 
240    niatioii  and  assistance. 

As  to  the  first '[uestion,  \VI<<'.t  i^  l/x  d  ta  liDiNfrnrfidii  of 
tfw  iiiUho'tpdl  hd''  f  we  have  theadunssion  of  Mr.  iVIarcy.  in 
his  l^r^t  h  tter  (.(U  tin  i-uiiject,  that  the  law  wonhl  n(»t  he 
violate(l  unh'ss  nilistmeiits  were  made  in  the  Iniled  States, 
or  eo.ilracts  w  iih  jKirtio'-  to  go  a!»ro;ul  with  intent  tulie  en- 
listed. (See  folio-  :.(i,  (Ui.) 

We  ha\''  al>o  ilir  <i)>inion  of  a  1  )isti'ict  .1  udgc  (  Kane,) 
tliat '•  the  |ia\  iui'nt  of  i he  passage  fmui  tiii-'  country  of  a 
man  who  iN^ii'o  to  onli.-t  in  a  t'oi-ciw-n  jx.ii,"'  doo  not  conn- 
0^1  within  thi.-  Ai-t.  tSe;.'  anti'  foliti  ',•_'.)  An<l  aiiothi-r  l)i>trict 
.hulge,  I  Ingt'isoll.)  has  Laid  down  ihi-  hiw  to  he  that  ""any 
resident  of  the  (nitcd  States  has  a  right  to  go  to  Halifax 
M'ith  the  intrut  to  \\-\."  (l-'.>Ho  •_•!.) 

After  Mr.  ('n>hing  hadgixm  his  opini(»n,  (August  IMJi 
185."i.)  Mr.  Marcy  jtreM'nud  a  ih'W  vit-w  .>t'  tin-  hiw,  i^ec 
folio  77  ft  ^eij.i  and  liegaii  to  ''ouiphiin  o|' acts  the  rightful- 
iiess  of  w  hicii  lie  had  prrviou>ly  ri'coM||i/;i'(h  (See  ivmarks 
on  the  rpirif  which  intluencetl  this  cniidnct,  ante  noti  s  ;50, 
30,  87. 
i)Ai)  It  has  hecn  eonteuded  ihat  the  Ihitisji  <  iii\  ei'iniicnt  is  not 
at  liherty  to  drny  I  lie  con>l  ruction  put  upon  the  act  of  ( 'on- 
gre.-s  hy  the  <  iovei  niiient  of  the  (  iiited  States — that  the 
o]>i  .ion  ottli(>  l*re--i(ient  is  conclusive. 

It  is  sutlieient  to  re[»ly,  that  if  that  [r  >o.sition  eouhl  he 
maintained,  th^'  agi'uts  of  a  foreign  government,  when  ac- 
cused by  the  I're.-ident  of  violating  llic  laws  of  this  coun- 
try, could  never  d(;nv  the  truth  of  the  accusation,  nor  even 
be  pernutted  to  showthf.t  the  charge  was  made  iu  had  faith, 


8.3 


and  for  the  mere  purpose  of  picking  a  (juarrel.  According  to   243 
that  doctrine,  a  despotic  prince   niiglit  declare  an  act  per- 
fectly innocent  to  1)(^  a  vidlatiou  of  the  nuinieiiial  law,  and 
hi:?  assertion  could  in  no  i-ast;  l>e  u'ainsaved.     The  doL-trine 


is  wholly  iuadniis.-iihlc.  for  it   is  evident  that   tl 


le  ( 


[uestion 


grees 


fuUv  iliscu— I'll,  ante.     Also,  r(Mii;irl.>  on  the  trial  of 


2U 


whether  the  law  has  heen  violated  cannot  depend  entirely 
on  the  assertion  of  the  accuser. 

In  ordinary  cast -.  the  opinion  of  tlie  l'ro><ideiit,  upon  a 
question  as  to  what  is  the  law  <.:f  the  I'nited  btates.  might 
be  aubmittetl  to  1>\  a  foreign  government.  But  in  thii 
controversy  we  havi\  in  the  lir>t  ii  stance,  the  ofiinion  (U 
the  Secretary  of  State  that  the  true  ohici-t  and  intent  of  the 
law  of  ( "ongrebs  was  merely  to  prevent  a  itrcach  of  the 
neutrality  which  this  country  desires  to  ol).-erve  hetween 
belligerents,  ami  that  to  constitute  u  violation  ni  tliat  law 
tlu're  mu>t  he  eithei- an  eidistment  within  tiie  I'nited  States, 
or  a  contract  to  go  aiiroad  lor  tiie  puriHi-e  of  Ix'ing  enli>led, 
(fos.  50,  »ii>.)  Ami  t'l  the  >ame  eifect  are  ihe  judicial  opi- 
nions belbi-e  (pioted. 

In  oppo^-itioii  lo  these  opinions  we   h;i\e  ihat  of  ihe  At- 
torney-( Jeiu'ral,   U'ojio    lM>^,)  :z'i\en  after   the    aliove  men-    2-t5 
tioned  letter  Iiad  bi'.'U  wi'itteu  and  -rut   h\   Mi'.  Marey  to 
.Mr.  ibudianan  to  Iti'  communicated  to  Lord  Clarendon. 

Si'C  till'  <piesliou  a>  to  the  eon--triictioii  oi'  the  act  of  (Jon- 


Ilert/,  before  . I  udge   Kani\  (folio    I  •'.)  j;;,'!  uf  W'jigner,  be- 
fore fludge  Iiigei'soil,  it'ilio  •J-J.) 

It  Is  (di'arlv  too  hite  for  th(>  I  niied  Stages  (ii>\  ernmeut  lo 
Contend  f>r  tin-  !;Uitu<linarian  iiiler|ii'e  niion  pjl  njon  the 
act  by  Mr.  (ai-ihing;  it  wa-  the  '  ivi>i"  the  <  ni\'i  rmneui, 
if  it  intended  to  insist  on  that  di.eiiini'  at  all,  to  advise  tlie  216 
British  authoriiies  at  the  outset,  that  in\'ila;ions  to  l'oivii:;n- 
ers  to  go  to  Canada,  iVe.,  to  enlist,  'vould  be  resi>t<'d.  (See 
iixft',  tols.  c>i',  tiu.  Holes  J."*.  •'■)",  ol,  ;.<!,  oT.) 


T)ie  next  (piestion  is.  whether  the  iJriliih  (iovenunent 
violated  the  /<ttr  t/f  /iiifio/is  by  the  employment  ot' agents  to 
"induct)*'  residents  of  the  I'niti'd  States  to  go  abro.id  for 
the  [)urpose  of  enli'^ting  tluunselves  in  tiie  British  arnty. 

The  argument  of  Mr.  Marcy,  as  to  the  law  of  nations,  i,-, 
an  afteiilKHt'iht.  (See  antf\  note  .'>(>. )  It  is  founded  upon  the 
supposed  authority  of  European  publici&ta  who  are  speak- 


84 


247  ing  of  systems  of  government  wliolly  dit}en  nt  from  that  of 
the  (Inited  States.  ViUte!  sayss,  tha*^  it  is  a  grave  otlence 
to  "  enticfi  away  tlie  ,^>(l>jedii  of  another  State, '"  lie  distin- 
guishes between  kidnap[)ors  who  n«ie  violence,  and  those 
who  have  "practi^jd  f<('ihic^i<»i  oidy  f  observing,  that  iis 
to  the  latter  "it  i^i  generally  thuuglit  sutliciei)t  to  puni^ih 
them  when  thev   can  be  detected  and  caught ;"  bnt  tiiat 


as  to  the  former,  '*it  is  usnal  to  deiuaml  a  ^^niTi'iider  of  tl 


iC 


delinquents,  and  to  claim  th.. 
otiv'     Booh  n,  cJi.  2,  .sv6\  15. 


l)e 


r.-M>.i 


IS    tl 


lev  iiave  carried 


Adopting  this  doijtrine  as  being  entindy  a}tplicable  to 
-48  this  republic,  Mr.  Marcy  couten  Is,  (See  fo,  \'-\'l,  c/.s^/'y,,)  that 
the  British  (Tovcrnment  had  no  riglit  to  cali-t  men  in  Hali- 
fax, who  liad  lu'-n  induced  to  go  fi-om  ihj  I'nited  States  to 
th;;t  port  i»y  promises  of  high  wages.  6cc..  and  that,  whether 
such  emigraats  W(n'e  foreigner^  or  juitive^  of  the  l.'nited 
States,     (.See  notes  30.  3(),  07,  55,  fo,  ■j:>5.> 

So  that,  according  to  Mr,  Marcy.  if  one  F-iigli-^hman 
sliould  ytersuade  or  induce  another  Kiii>:lisliman.  r(>si<k'nt  in 
the  Tnited  States,  to  return  tt)  l^ugimid  to  •^(■.■ve  in  ti.e 
armies  of  his  native  country,  tlie  person  oiVeriug  such  per- 
suasion would  be  comnutting  an  oil'ence  a^'iiinsr  the  law  of 

249  mitioiis  I  It  will  be  ob.^erved,  that"  V<rff>''  (hii'>  not  go  so  far 
as  that,  but  merely  asserts  tiiat  it  is  an  oif>.\iC(!  to  "  entice 
away  the  slbjk  "rs  of  another  State.''  It  is  uunece-sary  to 
argue  this  i{uesti(ni.  it  being  (piiie  idain  that  Mich  jiersua- 
sion  or  inducement  irniy  be  rightfully  oti'ei-ed  \y,  the  ab- 
sence of  any  nnniicipal  law  forhi'hling  the  same.  (See 
ante,  fo.  'M.) 

There  is  no  such  law  at  ju-esent  in  the  I'aited  States,  and, 
as  alret-uly  observed,  (folio  2l.|  tiiei-e  i-  no  [)robability  of 
any  enactment  to  that  effect,  eirher  by  Congress  or  by  any 

250  *^^''^  of  tlie  State  Legislatures. 

Nor  is  it  pn/oable  that  any  law  will  ite  i>a*sed  to  pro- 
hibit any  person  from  [>ersnadiiig.  Inducing  or  "  seducing" 
evi'U  citiz'^iis  of  the  I'nited  Statt-s,  wliefinr  naiive  or  adopt- 
ed, to  leave  this  country  for  tin-  purpose  of  engaging  in 
foreign  military  service.  It  would  be  inconsisteiit  and 
ungracious  for  the  Fnited  States,  (;r  ibr  any  Srate  of  the 
Urdon,  to  nuike  it  penal  to  persuade  or  induce  aliens  or 
naturalized  citizens  to  return  to  their  native  country. 


that  of 
offence 

distin- 
l  tliose 
that  !is 
punish 
ut  that 

of  ilie 
carried 

alihi  to 
/./)  that 
111  llali- 
tates  to 
tvhellier 
I'liiteil 

H-^hniiiM 
idoiit  ill 
'   ill  tl.c 
I'-h  {HM-- 
i  hiw  of 
s'>  i'ai" 
entice 
sary  to 
)ersiia- 
he  ah- 
(See 

'?.  and, 
iiitv  of 
i'V  any 

to  pro- 
uciii<r '' 

adopt- 
^iiiij^  in 
lit    and 

of  the 
ienn  or 


Nor  M'ould  any  oifence  he  committed  ai-iiinst  the  huv  of  251 
nations  hy  the  act  of  persiiadino'  or  as'^istinji,'  a  native  citi- 
zen of  tli(^  Tnited  State-  to  gu  and  serve  in  is  foreiii'n  army. 
As  the  municipal  hnv  chics  not  i'oiliid  liis  uoiiur.nor  in-ohiliit 
any  one  from  advisiny,-  or  a^^^isting  liim  to  go,  tiiere  can  he 
notliing  Avrong  in  giving  such  advice  or  a>sif,:;:iice. 

Lord  ('iareiidon  "s  ])erft>etlv  li^ht  ii;  sa^iiiG:  that  the 
charge  of  viohitioii  of  hiovereign  territorial  lights,  cannot  lie 
fairly  urged  as  a  separaU-  and  different  charge  I'rom  that 
of  violation  of  (ho  niiinii'ii>al  law  of  the  irnitecl  States. 

When  VoJul  asst.-rts  that  ir  is  an  otfenee  agaiut^t  tiie  law 
of  nations  \i\tiii'/cr  av.ay  the  suhjoct.-j  of  anotiiei-St.-iti'.  iu'  i^  -•''- 
assiniiiiig  tiie  policy  of  such  Stat^'  to  he  toivoti)  its  sniijects 
hoiuid  to  tlicii- allegiance.  Jhit  in  the  (nited  States  no  such 
doctrine  ^irevails,  "the  riglil  oi  expatriation  heing."  in  the 
language  of  the  Court  of  .Vppealsof  Kentucky,  "  a  i)ractical 
and  fmidainenial  American  doclriue."  (1*  D<i)ia,  iTs,  Al<- 
hi r I'll  V.  Ihnrk'i it:<.\ 

At  all  events,  the  right  of  liie  Anifrican  citizen  to  go  into 
foreign  <-<'r\ief  is  eh-ar,  and  no  oni  has  pi'etendf<l  linir  the 
neutraiily  of  this  governnu'iit  i-^  eoiiiproniitrnl  hy  iiie  exer- 
cise of  that  right. 

S.'t' remarks  on  tin'   i-!ngli.-li   Knii-tmeiU   Act,    Wh- atoll's   -53 
FAi  iti>'fii.<,  jHirt  -I",  rh.  o,  •'<.  17.  and  ]\/ii(ifiiiii^  Illdoiij  (f  the 
L'iin  ,if  y,iihh<s,  pihi  •-,  ■'?.  i!">. 

^VihHiinn  <.I»- rr\-cs,  that  (h:riiig  the  wars  of  the  Freneh 
lievolutiwu,  the  Tinted  ."tate-.  jipiH-aling  to  tlie  itrinciples 
laid  vlown  hy  Vi(U>K  />'.  ''!.  '/'.  ^5.  •'^vc.  it»t-.  )»rohi!)ited  "  the 
heliigerent  pou\'rs  from  e<juipping,  arming  and  manning 
vessels  of  war  in  tluir  pons."  Xti  such  doctrine  as  that 
now  conifiided  for  hy  Mr,  Marcy  is  siisfained  hy  Vattel, 
or  any  other  Aviiter  on  iiiternaiional  law,  nor  can  any  coun- 
tenance of  it  hi'  found  in  tlie  course  adopted  l.y  the  Tnited  254 
States  at  tl  e  perio/i  in  <piesiioii. 

See  Muii'  >i-^,  cL  6,  fn't:  2,  as  to  what  are  tlie  di.iios  of 
neutrals.     Also  (irofiiix^  />'.  '.I.  <'/'•  IV, 

The  Suj)reme  Court  of  the  United  States  has  decided 
that  ''  the  sending  of  armed  ve:-sels  or  of  munirions  of  war 
from  a  neutral  countiy  to  a  heliigerent  port  for  sale  as  arti- 
cles of  commerce,  is  unlawful   only  iis  it  suhjects  the  pro- 


Y- 


86 


256 


256    perty  to  confiscation  or  cai)tiire  l\y  tlio  other  belligerents." 
The  S(tntis/>r//i(i  Trinithul,  7  Whatt.  livp.,  2S.".. 

Bynl'ernh(('cl\  in  liis  treatise  on  the  law  of  war,  <levotep» 
a  chapter  (elui]). 'i'2)  to  rht>  snhje 't  of  "enlisting  men  in 
foreign  countries  and  incidentall;'  of  ex{»atriatioii."  lie 
holds  that  in  tlic  absence  (if  nuiiii<'iital  law  prohibiting  the 
act,  it  is  perfectly  lawful  and  right  to  enlist  men  in  a 
foreign  State. 

A  fortiof'i.  a  State  who«c  citiz*  n-;  have  the  right  of  ox- 
l>atriatioii,  cannut  ctnuphnn  if  a  foreigner  merely  )iersua<les 
or  invit<'>  tiiem  to  exercise  that  rii.hl.  Of  cnur>e,the  State 
might  |»rithibit  llie  givin',;'  of  sueli  advici",  ]>ut  legislation  of 
that  character  w(»ul<l  be  remarkably  ungracieus  in  a  Slate 
which  in  its  correspondence  wiih  biv  i^m  powers  constantly 
insists  oil  the  natural  right  of  e^  <rv  num  to  absolve  him- 
self from  his  allegiance  to  lii>  nat  V(>  countrv.  That  is  the 
position  avsunu'il  liy  tli(>  (^;vei'nnieut  ol'  tl;  ■  I  inte<l  States. 

And  when,  in  additirm  to  ihls  wi*  lind  tl  at  the  countrv 
has  been  to  a  great  extent  peo  »KmJ  by  emigrant'-  from 
Euroj)e,  who  ha\c  b-en  authori/.ed  liy  the  law-  of  the 
Uniteil  States  to  absolve  themscKe-i  tVom  their  f  :'Miier  alle- 
giance, it  is  clear  thiit  tiie  pii'-^ug<'.  (pioted  by  Mi-.  NFarcy 
from   V<itU'K  has  no  ap]»licatioii. 

Nor  is  there  any  real  eoulli -t  Itetweeu  Vdff'l  ditd 
Bij)Ji'<  i'!<lHiek  OH  thi>  (pu'>tioii.  t'oi  the  tbrmer  meant  only  to 
assert  that  it  is  ;in  otl'ence  again-t  the  hiw  of  luitiou-  tor  nn 
individual  to  di-turlt  the  doine-.tie  pi.iicv  n\'  a  foreiixn  State  ; 
whilst  Bijuh-.  maintai't-  that  wiieii  the  policy  of  a  .State 
is  n^it  op[)o>(  d  to  the  exp.iti'iatioa  of  it>  (•iiizen>.  then  it  !;- 
lawful  to  inibu-i'  them  to  Icavi-  rheir  native  country,  ami 
enter  into  the  military  service  of  atiotjici". 

It  is  true  that  no  American  eould  lawt'ully  in  Knglaud 
persuade  or  assist  an  l-jiglis'  nai  to  go  abroad  to  <erve  in 
a  foreign  army,  becau  -e  by  the  English  eommon  law  it  is  a 
mis<lemeanor  Ibr  a  subject  to  eiuer  into  foreign  service 
without  the  con.-ent  of  the  SovoreiLrn.  '.*  ICinfn  (■am.  (8 
iil.)^.  5;    \  Ka4.   P.  (\,  Si  ;   1   //,///</•.  /'.  T.,  B.  I,  r/i.  2-2, 


257 


258 


sn:  ?>. 


It  would  be  al>surd  to  nuiiutai  i,  in  the  [)resent  State  ^A' 
the  niunicij)al  law  of  the  United  States,  that  an  Knglishnuui 
should  be  subjected  to  three  years  imprisonment  if  he  in- 


87 


gerenta. 


,  devotee 
;  men  in 
u."  He 
itiiig  tlio 
lien   ill  a 

lit  of  ox- 
)orsiiU(los 
till'  State 
"(lation  of 
!  a  Slato 
oiistaiilly 
»lve  liiiii- 
lat  is  tlu! 
•tl  Mati'6. 
cnuntrv 
uU  from 
'•-.  of  the 
HUM-  alle- 
r.  NFarov 

'/./  iind 
only  to 
l<i.'  an 
1  Sv.'itt' ; 
a  State 
iMi  it  i> 
ry.  aiitl 

■Inu'laini 
-crve  in 

w  it  is  a 
service 

Com.  (8 
eh.  '1-1, 

State  of 
lisliinan 
f  he  in- 


duced one  of  his  fellow-couutrynien  to  return  home  to  serve    259 
his  country. 

This  country  cannot  reasonahly  claim  ((  ///c;;;o;W//  of  the 
ri<j/it  of  Kcdnctloit :  (.tlier  powers  have  at  least  the  rio-ht  to 
)y-Siih(<'C  tiieir  citizens  to  return  to  their  1'ormor  allen-iancc  ; 
aright  which  wiil  reniain  until  sonio  new  le^'isUition  takes 
place,  conceived  in  thespirit  of  the  old  law  of  Pennsylvania, 
which  made  it  a  <'riine  to  sednce  artists  to  settle  al)road. 
(See  Ihis  law,  cited  .'5  /A//A/\  //.y*.,  14;}.)  ]t  may  bo 
here  ohserved  that  any  foiei<;'ii  nDverunient  can,  witlmut 
ado[>ting  the  Aniericm  (h'etriiie  of  expatriation,  hold  tliis 
conntry  hound  l)y  its  n-peated  atiinnauce  <»f  it.  260 

The  doctrine  of  the  Knglish  law  is  <•  rlmt  natural  horn 
subjects  owe  an  alleuiance  which  is  intrinsic  and.  perpetual, 
and  which  caiimit  he  divested  by  any  act  (vf  their  own." 
1  Hlac.  ('(Mil.,  ;;(1!).  Kent  says,  2  Kn<l.  Cmt.,  43,  "  It  has 
Ijeeii  a  (pie>ii(tii  freipieiitly  and  i;ra\ely  ar<i'uc(l,  both  by 
theoretical  writers  and  in  toi'en-ic  di-eiis^ioiis,  whether  the 
Kn^lisb  d.icti-iiie  of  perpt'tnal  allegiance  aj»plies  in  its  full 
extent  to  this  euuiitry."  lie  reviews  the  de(•i^i^l|s  in  the 
I'uited  States  on  this  >ubject,  and  concludes  that  the 
weiixht  of  .\merican  aulliority  is  in  fav<>r  of  the  Knu'lish 
doctrine;  l>ut  adds,  "The  naturali/;ation  laws  of  the  I'nited  "261 
States  are,  however,  incon-iistent  with  this  i^eneral  doctrine, 
for  the\  reipiirc  the  alien  wlio  is  to  be  naturalized,  to  abjure 
his  I'ornier  alle^^'innce  without  re<pdring  any  evidence  that 
his  native  >overeic;u  has  released  it." 

In  tlie  I  a>e  of  ILnfrll,  repofted  in  Wharton  s  Statu 
Trhilft  if  thi'  ['nlttil  Stall  K,  y.  4!>,  the  defendant  was 
charii'od  w  itli  haviuii' eidisted  in  a  Ireiich  pri\atcer,  at  a 
time  when  the  I'nited  State>  were  at  [leace  with  Kngland, 
ami  theri'  Ava>  war  between  Eti^land  and  France.  The 
trial  took  j.lace  in  the  Circuit  Court  of  the  I'nited  States,  262 
at  rhiladclphia,  in  the  year  1T1>3,  before  the  passage  of  any 
act  ot"  ( 'ongrcss,  res])ectiiig  t'orcign  enlistments. 

dudge  Wilson,  in  his  cliarge  to  the  (irand  .lury,  said  : 
That  ••  a  r/'tf'zrii  who.  in  (.tir  State  of  neutrality,  and  without 
the  authority  of  the  nation,  take-,  an  hostile  part  with  either 
of  the  heligerents,  violate-  tlien'hy  his  duty,  and  the  laws 
of  his  country." 

It  appears  that  the  judge  referred  to  acts  done  within  the 


88 


>ei 


263  jitrisdictioTi  of  the  T'liited  States.  The  iiKlictinoiit  cliarp;ocl 
that  tlio  (Ic'l'endant  was  an  inhabitant  of  tho  rnitcd  States, 
and  that  he  being  a  j)rizeniaster  on  lioard  the  privateer, 
did  sail  to  several  nuu'itlnie  phiees,  witiiin  tlie  Jnrisdielion 
of  the  court,  to  capture  English  ships,  tfcc.  All  the  counts 
are  to  the  same  effect. 

It  was  contended  by  the  counsel  for  the  prosecution  that 
tl'e  law  of  nations  was  part  of  the  law  of  tlie  land,  ard  that 
the  defeiulant  had  otfended  ai!,ainst  the  law  of  nations. 
That  at  the  time  of  the  eommissio  i  of  the  act  the  defen<hint 
was  a  citizen  of  the  Tnited  States,  had  not  renounceil  his 
country,  and  wa-*  not  domiciliated  el>*ew]iere.  and  that  his 
family  was  still  in  Mas-achu^ctls.  The  defendant  had  en- 
listed in  the  privateer,  at  (  harleston.  Ilie  counsel  for  the 
l>rospcution  ai'ii'ued  as  follows,  (j),  SI): 

•*  Let  us  su[)pose  America  enpiixed  in  war.  and  that  one 
of  lier  falthles;  children  ]ii'efers  (ae  otlicr  ])arty,  joins  an 
hostile  detachment,  which  has  already  inva<Ied  his  own 
country,  or  enters  on  board  a  Ibi-eiiru  privateer,  lyin^-  in  our 
bay .^  and  commits  tiiose  acts  whicii,  in  war  ar*^  lawful  in 
]ieace  crillle^.  Doe-^  tlie  ri^'ht  to  I'mig-rate.  ti.i'  riulit  to 
choose  liis  counli's-,  to  retiounce  ids  foriuiT  allcijiaiuH',  pro- 
tect  hiiii  here  i 

It  will  be  said  that  this  is  not  a  parallel  ca'-e.  A\'hat  is 
th;^  dilference  i 

1.  The  offender,  in  the  latter  case,  has  a  rit>;ht  to  leave 
one  country,  anil  hecime  a  citizen  of  another, 

L',  lie  has  a  right  to  tlist-'Ugage  himself  entirety  iVom  the 
obligations  of  duty  and  obedience  to  the  first  co\intry, 

?>.  The  act  of  jraning  the  other  country,  of  itself,  exempts 
him  fiom  tho.-i'  piima'w  ol)ligations, 

S(»  fur  the  parallel  is  e,\act. 

To  escape  its  effect,  it  may  be  asserted  that  a  man  c;in 
never  lift  his  haiul  against  his  native  country.  But  then 
what  becomes  ot  all  these  rights  (  If  the  slavish  doctrine 
of  an  unalienable  allegiance  is  admitted,  it  totally  destroys 
tlie  rigl'.t  of  emigration.  Thus,  after  all  this  circuit,  we  are 
let  down  where  Me  began,  viz:  That  the  eni'gration  from 
one  couTitry,  and  the  reception  in  another,  must  be  sub- 
stantially and  ilefmitively  effected  before  theaetsof  hostility. 


265 


20'^ 


80 


Kit  IS 


tilO 


r;in 

lion 
rriiie 
roys 

are 

I  0111 

lity. 


Let  it  not  1)0  i-jiid  tluit  this  cloctn'm-  violates  the  ri^^hts  of  207 
mail.     It  is  on  the  riy-lits  of  man  that  it  is  established," 

In  ehar-i'in*,^  the  jury,  .liidoe  Wilson  nbserved  (p.  84)  tlmt 
the  defendant  had  admitted  that  when  he  committed  the 
act  of  hostility  in  <|ncsti(Mi  he  was  a  eili/en  of  the  United 
States.  It  was  at  thaf  time  (says  the  Jutitce*  '•  th(\  least  of 
his  thoui,dits  to  expatriate  hiniselr.'" 

The  jury  retnrned  a  ver<liet  (tCiuir  miilty. 

See  on  pa.u'e  S!)  tlic  extract  trom  Mr.  -lelferson's  hotter  to 
Mr.  Morris,  then  in  Knyland,  commeiitini;'  on  this  trial. 
{}\Jef.  (\,r.  ^11 1.)  "  '  268 

"  It  has  hin-n  pretended  indeed,  that  the  eni^ajj^'fcuient  of 
a  citizen  in  an  ent,erj)rise  of  this  nature  was  a  divestment  (»f 
tlu^  character  of  citizen,  and  a  transler  of  juvinliction  over 
him  to  another  sovereign.  Oni'  I'lliruiix  <(ir  <  iiHrcli/fiyf  tit 
(//rrsf  tlii'iii>iilrrs  of  t/iaf  rhiii'ncd r  Inj  luilyraiion^  and  other 
acts  nianitestiiiu-  their  iiiteiitinn,  and  may  then  heeonie  the 
suhjecth  of  another  power,  and  free  to  do  whatover  the 
subjects  of  that  [xtwcr  niav  do.  I  Jut  the  laws  do  notadir.it 
that  the  bare  commission  ofa  crime  amounts  of  itself  to  a 
divestment  of  tlie  eharactcM- of  citixi'ii,  and  witlulraws  the  ;>69 
criminal  from  their  coercion."' 

In  Tidliof  \.  Jdnxoii,  ,'>  l)alli(i),  1  •')•'.'),  before  the  Su]»r(Mne 
Court  of  the  I'niied  Slates,  in  1  T!'."),  it  was  held  that  ''a 
eaptnrt^  l>y  a  citi/.(.'ii  oi"  a  neutral  state,  who  sols  up  an  act 
of  expatriation  to  jiistil'v  it,  is  unlawful,  where  the  removal 
from  his  own  country  was  by  sailiiii;'  contrary  to  the  laws 
of  his  country  in  tin-  eapacitv  of  ;i  criiisi.'r  au'ainst  foreign 
|iower>.*"  riie  caiiture  was  made  by  a  vessel  illegally  tit- 
ted  out  in  the  I'liited  States  l)y  citizi-iis  of  the  United  States, 
and  carrying  the  tlag  ol'  tlie  l''ren('li  Iie[)ublic,  being  com- 
missioned as  a  privati'er. 

It  was  contended  by  Mr.  Ingersoll,  that  the  abstract  27<> 
riirht  of  individuals  to  withdraw  from  the  society  of  which 
they  wert:  memlters,  was  antecedent  and  superior  to  the 
law  of  society,  and  recognized  by  the  best  writers  on  pnblic 
law,  and  by  the  nsage  (»f  nations  ;  that  the  law  of  allegi- 
ance was  derivi'<l  from  the  feudal  system,  by  which  men 
were  chained  to  the  soil  on  whi(di  they  were  born,  and  con- 
verted from  fi  oe  citizens  to  be  the  vassals  of  a  lord  or  supe- 

12 


IK) 


271  rior  ;  that  this  country  \vus  i'uh»iii/,o(l  iiml  si'tth'd  upon  th 
doctrliu'  <}{'  tlio  riirlit  ol'  otni^nitioii  ;  tlint  the  ri<;lit  was  "'i- 
C()nto«til)le  if  exorcised  in  due  coutonnitv  >vith  the  iiioi.U 
and  social  (tIditjatidnM  ;  that  thu  itDWir  :i5,^nnu>(l  h  the 
GovoruiniMit  of  the  I'uited  States  dl'  iiatMvali/ini>'  aliens  h\ 
an  onlli  of  alh-iilauce  to  riiis  ctuintrv,  iiit<.  r  a  temporary 
residonee.  virtually  iuiwlivs  that  o\ir  citizens  nuiy  ln'conu? 
suhjei'ts  of  a  foroij^u  ]H)\vt'r  by  the  same  moaii.'. 

'I'lie  eounxd  on  llie  oiher  side  etiuci^;  d  that  Idrth  ^ave 
no  property  t"  tlu'  nuiu  ;  that  upnn  ilu- priiu-ipU^-  of  the 
Anu'riean  <  JoviTuiiu'iii    lu'  miixht    li':ivo  his  country  when 

27w  lie  pleased.  pn<\  idcd  it  wa-i  done  />  i/i</  jiii  ,  and  with  ;jj<)i>d 
cause  and  under  tlu-  rcu'iiiations  picscrihcd  hv  law  ;  and 
that  he  aetnally  took  up  iii-i  residence  in  anotiu'r  cnunlry 
unuer  an  open  and  avowed  deelaation  of  hi-  intent'on  t() 
settle  there. 

The  (pie.->tion  w  i-  no;  (U'cided  1»y  the  ("oiirt. 
lu  the  ca^^e  of  U7V/^///rv.  tiied  in  tlie  Ciicuit  <'itin't  of  the 
United  State-^.  at  llarH'ord.  I  7l»!».  \VI>"rl,n:.^  Sfat,  7'n"l.^, 
(tr)2,the  defendant,  a  citizen  oi"  the  Tuiiid  ^  t.ite-.was  cIi.h'l;- 
cd  with  having  in  the  Wi<t  Indie-  ac-e  ied  a  C'inimi>sion 
from  the  Ueouhlic  of  France,  tla'u  at  war  \\it:i  <ireaf  Kri- 

273  taiiu  'Vfdch  country  w;is  at  peace  \\ii':  tiie  I'ldred  Stales, 
nv.o'  i!H' indictment  .iUe^'ed  tha*  the  act  if  t!;c  defeiulant 
■»NU'  a  .'iuhition  ot"  the  treaty  hetween  fjiu'land  and  the 
United  Status.  Tin-  defeiKH'  \\a<  that  the  acciir^ecl  had 
become  duly  naturalized  In  FraiuH',  aii'i  had  renounced  his 
alleiriance  to  the  United  States. 

Chief  Justice  Ells^v.prlh  lield  that  this  w.;-^  \,i,  lU'lence, 
and  the  defendant  was  convii-lel.  ')  iu-  jud^t'  sai<l  :  '•In 
comitries  so  crowded  with  inhahilam-  thai  the  means  of 
subsistence  ar(^  diilicnlt  to  Ik-  obiaiiu;d.   ir   i>  reason   and 

274  p<»liey  to  jiennit  euiig-ratitui.  Ihii cur  jiolicy  is  dilfei-ent, 
for  our  country  is  but  sparsely  settled,  and  we  ha\v!  no  in- 
habitants to  spare."  *     "' 

"  ('onsent  has  bi;en  arirned  iVom  the  acts  oi'  our  o;overn- 
inent,  permittiiii;"  tlie  naturalization  of  foiiio-ucrs.  When 
a  foreigner  ])resen^s  himself  here  aim  pi-oves  himself  to  lu; 
of  a  good  moral  character  well  ati'ected  to  ilm  ( 'onstitution 
and  Government  of  the  Uinted  Stale-,  and  a  friend  to  the 
good  order  and  happiness  of  civil  society,  if  he  lias  resided 


1  upon  tli 

[lit   WftS  -M- 

the  iiioi.il 
ul  1./  the 
;  iilioiin  1>y 
ioiii|)oran 

l»ivth  pivo 
.Ic^  ol'  the 
\\\vy  wIkmi 
witli  ;;()(»<  1 
'  luw  ;  jiml 
ci'  c'ouutrv 
lltOlltioll  tu 


'>\\vt  1)1"  the 

'(tfr    ///'//.v, 

was  I'h.ir:^- 
.'iiiuiiii^sion 
|<ii\'!it  r>ri- 

cliMuhiiit 

and   l!u' 

^('(l    liad 

unt'i'd  Ills 


•11 


■  I  dv'i'em'o, 
ai(l  :    '•  III 

llicall'^    nf 

t'a>i'!i   and 

dilflTCMlt. 

:\\  <.■  lift  iii- 


iv  fifovcrn- 

r,.        Wht'H 

.■If  to  be 
liistitittioii 

lid  ti)  till! 
as  resided 


91 

Jiecc  the  time  prostcrihod  by  law  wo  ^rixul  hiintlm  privilcf^e  275 
ot  a  c'lti/,t'ii,  \\  o  do  not  iii(|iiin'  wiiat  his  ndafioii  is  t<»  his 
own  coniitrv  ;  we  iiavi'  not  tin-  means  ofkiiowiiiir,  and  tho 
iiLpiirv  would  ho  indolieato.  We  k-a/ehini  to  jud^^^e  ot'tluit. 
If  ho  ond)arrass("*  himself  hy  contruftini!;  contnuiietorv  oh- 
li^nitions,  the  far.If  and  the  folly  are  his  cnvn,  JJi.t  this  im- 
plies no  ef»nsont  of  the  i^overnment  that  ouv  own  citizens 
should  expatriate  themselves." 

This  is  hut  the  opinion  of  a  siiiM-Jo  Judire  on  Cireuit. 
See,  Hi  to  the  riii'ht  to  i^o  into  f .  .ijjn  serviee,  the  opiidon 
of  Chief  Ju-tiec  Marshall,  (pu.  M"olio(:>SS\,  27fi 

.Induce  KlIsworilTs  opinion  in  a.  ])amphletput 

forth  hy  "Mr.  Madison's  admii     •  it  the  time  of  the 

imiiressMient  dillieidties,  now  ui  ti-!.>  .d  to  have  heeii  writ- 
ten 1)V  Mr.  ilav,  then  Distriet  Attornev  of  Viru-inia.  ul 
ti''aiif<(' on  Ki'j''ifri((fit»),  Wl^.^/u'/r/ff>/l,  1x14.) 

See  ll7/<//'A>;r.>' //^'/n  to  this  case.  "'I'lie  ^piestion  raided 
in  the  text,  wliethei-  a  c!t;/en  may,  in  any  manner,  without 
the  ci>n>ent  of  his  (rovernmeiit,  ca<t  otf  his  alleijiance  lo 
his  native  eountrv,  i  o:u'  which  has  arisen  in  this  eounlrv 
to  more  than  theoretical  importance."'        "         ■•■         ••  277 

"Oni!  of  the  chief  causes  of  the  war  of  lSl'3was  the  di>re- 
^•ard  paid  !'V  the  l^riti-^h  (iovei'!im(>nt  li>  tlie  naturalization 
of  ih'itisli  >\  Ljeet-i  in  this  eiuntiy.  Within  a  ve.y  short  j)(« 
riod  the  nuitter  has  heon  aii'ain  auritated  !n  the  masterly  des- 
|)atch  of  Ml-,  i'uehanan,  ai'i>iui:;  iVnin  ti  e  deteiilion  f»f  lier. 
fj^en  and  Ivyan.  diniiuj;;  the  late  iiisarr.x'tion  in  Ireland.  The 
claim  of  the  I'liiit'd  Stat.'-,  for  ih  •  relea->e  of  the^e  parties 
was  foumled  on  the  a--umpiion  tliat  iis  naturalized  citizens 
of  this  coumry  tlu^y  wi'  -e  no  liDio-ei-  suhjict  to  the  juiasdic- 
tii>n  of  iMiiiiand.'" 

''The  ttMideiu'v  of  tiii^  puldieiuind  in  th'-.  e  )'mti-y  is  uu-  '-"M 
questionably  in  favor  of  the  rili'lit  of  exj)atriat"ion.  The  ex- 
travagant extent  t'>  whieli  tiu»  doeli-ine  ol"  p>.:rpeiual  alle- 
giaMe(>  ha-  been  at  tinier  carrie  1  in  Iviniand,  the  grievances 
sulfereil  by  us  from  the  i)raetical  0[)eration  ot'  the  Knglish 
rule  during  tin'  t;.rly  part  of  this  century,  and  the  some- 
what migrat(»ry  habits  of  oui"  i>eojde,  liavo  rendered  the 
doctrine  distasteful :  while  the  apparent  inconsistency  ^vith 
our  system  of  naturalization,  and  the  uiuf  >rm  encourage- 
uient  offered  by  the  Government  to  eaugration.  have  been 


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279  thought  to  prechide  its  adoption  by  tlie  Courts.  It  has  al- 
so, as  has  been  seen,  been  opposed  by  very  high  authority 
in  the  Cabinet  and  in  Congress." 

*  *  *  He  refers  to  the  common  hiw  maxim 
"  that  no  one  may  throw  off  his  country,  or  abjure  his  alle- 
giance." "This  rule,"  says  he,  "  founded  on  the  feudal  re- 
lation of  lord  and  vassal,  stamps  upon  any  one  born  within 
the  British  kingdom  so  indelibly  the  character  of  a  British 
subject,  that  no  act  on  his  part  can  relieve  him  from  its  con- 
sequent duties." 

Thlfi  doctrine  he  considers  to  he  adopted,  in  this  co^mtrrj  ! 

-^^  although  he  admits  that  the  publicists  in  general  speak  of 
the  right  to  leave  the  State  at  ])leasuro  as  a  natural  riglit. 
"That  the  King  of  England  refused  to  permit  the  naturali- 
zation (^f  aliens  in  the  Colonies,  was  one  of  tlie  causes  of 
complaint  enumerated  in  the  J)eclaration  of  Indepondance 
Before  the  adoption  of  the  Constitution,  two  States,  Penn- 
sylvania and  Virginia,  had  provisions  in  their  Constitution, 
and  laws  in  favor  of  the  right  of  emigration.  These  pro- 
visions were  considered  as  destroying  the  common  law  rule. 
Murray  vs.  McCarthy ^'1  Munford,'3\)3  ;  Joebson  \h. Burns. 

281  3  Bi7mei/,  83." 

Mr.  Wharton,  after  referring  to  tlie  opinion  of  the  Su- 
preme Court  of  tlio  laiited  States,  in  Shanks  vs,  Dupont, 
8  Peters,  2i'2,  and  in  Inglis  vs.Trustees  of  Sailors  Snug  Har- 
bour, ib.  99,  says  :  "  However  distasteful  it  may  have  been 
in  a  political  ])oint  of  view,  we  are  bound  therefoiv  now  to 
hold  that  allegiance  does  not  shift  at  will,  biit  is  a  contract 
disssoluble  oidv  bv  consent.  Nur  is  it  to  be  dismiised  that 
the  repugnance  with  which  this  view  was  visited  in  tho 
earlier  stages  of  the  lie])ublic,  when  the  conntry  was  com- 

282  posed  of  nothing  else  t!ian  aliens  naturalized  or  revolution- 
ized, is  now  yielding  to  a  more  imperial  policy." 

In  /Shanks  v.  Di/pont,  •'>  Peters,  '246,  Story,  J.,  delivering 
the  opinion  of  a  majority  of  the  court,  incidentally  observed 
that,  "  Tlie  general  doctrine  is  that  no  person,  can  by  any 
act  of  their  own,  without  the  consent  of  the  government, 
put  otF  their  allegiance  and  become  aliens."  This  case 
was  decided  in  the  year  18JJ0.  The  question  involved  was 
whether  the  iieirs  of  a  British  subject  who  owned  lands 


93 


has  al- 
litliority 

maxim 
lliis  aile- 
[udal  re- 
|i  within 
|i  British 
|i  its  con- 

\ouHtrj/  ! 
4)euk  of 
ill  right, 
naturaii- 
auses  of 
ic'iK  lance 
!S,  Penn- 
stitntion, 
leso  pro- 
law  rule. 
H.  Burns. 

f  the  Su- 

iiiug  llar- 
lave  been 
iH)  now  to 
,  contract 
lised  that 
(1  in  tho 
.vas  com- 
volution- 

elivering 
observed 
II  by  any 
ernment, 
rhis  case 
lived  was 
ed  lands 


^n  Soutli  Carolina  in  1794,  were  entitled  to  the  same  by  vir-   283 
tue  of  the  treaty  with  Great  Britain. 

The  Conrt  of  Ap])eals  in  Fventucky,  in  Alsberry  v.  Haw- 
kins, 9  Dana's  Rep.,  17S,  hold  (in  the  year  1839)  that,  "  //* 
there  he  no  stafiitc  retjulation  on  the  fmljeot,  a  citizen  may  in 
good  faith  abjnre  his  country,  and  tluit  the  assent  of  the 
government  wan  to  be  presiiiNct/,  and  ho  lie  deemed  dena- 
tionalized."    2  Kent's  (Join.,  49,  ?iot,'  h. 

Most  writers  on  pnblic  law  atHrm  the  right  even  of  a 
subject  \o  abandon  his  miiive  couiilry. 

Burlamaqui,  ch.  5,  *•,  13:  '•  It  is  ii  right  natural  to  all 
free  peoj)le  that  every  one  sIiDuld  have  the  libci-ty  of  re-  ^"^ 
moving  out  of  the  Connnouwfaltli  if  he  thinks  proper." 
He  adds  that,  "  in  general,  a  man  ought  not  to  quit  his 
native  ccnintry  without  tiio  [lormission  of  his  sovereign. 
But  his  sovereign  ought  not  to  refuse  it  him  without  very 
important  reasons." 

Vattel.^  B.  1,  ch.  1!>,  .v.  22() :  "Every  man  has  aright  to 
(juit  his  country  in  onU'i-  to  settle  in  any  other,  when  by 
that  step  he  does  not  endanger  the  NVcUare  of  his  country." 

In  a  note  to  the  7th  American  edition,  the  editor  says  : 
"  Our  laws  rerpn're  the  services  of  naturalized   citizens  in 
time  of  war,   even   if  the  enemy  should    be  their  native 
State;  and  our  government  has  always  resisted  all  attempts   285 
by  such  State  to  ]>u)iish  them  as  traitors." 

(irotias,  Bool'  •_*,  ch.  T*,  .s.  24,  lays  down  a  doctrine  similar 
to  that  of  V^attel. 

And  so  I*ufen<lin'f,  Booh  8,  c.  11,  .v.  2,  3,  4. 

And  see  Mart'ii"!,  B.  3,  cji.  3,  .svc.  (!. 

The  Romans  forced  no  perstm  to  continue  under  their 
government,  and  fV^vro  highly  commends  this;  calli.ig  it 
the  surest  foundation  of  libi'rty,  Oi'ot.  pro  L.  C.  Balho, 
ch.  13. 

The  publicists  cpioted  above  do  not,  however, mean  to  as- 
sert that  the  natural  right  referred  to  is  not  subject  to  the 
control  of  municipal  law,  but  only  that  in  the  absence  of 
any  prohibition  in  the  latter,  the  subject  has  a  right  to 
leave  his  country.  See  on  this  ])oint  Bi/nk.  chap.  22. 
i9o^/?//<*;*,  in  his  Treatise  oji  Tniversal  Public  Law,  p.  273, 
says  :  "  The  power  of  emigrating  and  throwing  oft'  citizen- 


286 


i 


94 


iih'.'i 


U 


287  ship  or  allegiance,  depends  in  each  country  on  its  mnnici- 
pal  laws,  and  tliis  is  a  matter  of  arbitrary  or  po-fitive  law." 
In  the  absence  of  any  legislation  on  the  subject,  the  right 
of  the  Amei'ican  citizen  to  emigrate,  and,  in  good  faith,  to 
absolye  himself  from  his  allegiance  to  the  land  of  his  birth, 
seems  to  be  the  direct  conseiiuence  of  the  principles  npon 
which  the  institutions  of  this  Republic  are  founded.  If 
any  restraint  of  this  right  bo  deemed  expedient,  it  should 
be  introduced  by  legislation.  To  affirm  that  the  old  rule 
of  the  common  law,  fonnded  upon  feudal  reasons,  is  in  full 

2S8  force  here,  is  to  place  the  nation  in  a  ridicnlous  attitude  ; 
the  goyernmeni  of  the  United  States  haying,  in  its  corres- 
pondence with  foreign  powers,  pronounced  the  English 
doeti'ine  of  perpetual  allegiance  to  be  repugnant  to  the 
natural  liberty  of  mankind. 

In  the  case  of  the  Santlsshna  IVhi'idad,  1  Brock.  Ii^'p., 
48G,  Chief  Justice  Marshall  held,  that  whether  the  right  of 
expatriation  exists  or  not,  an  .Vmerican  citizen  may,  accord- 
ing to  the  modern  usage  of  nations,  enfia(/<'  in  for(i(jn  fi«>)'- 
vire^  without  cotn])romisiiig  tlie  neutrality  of  his  goyern- 
ment,  or  diyesting  himself  of  his  citizenship.     lie  also  held, 

289  that  the  application  of  this  general  principle  to  the  case  in 
hand  was  not  preyented  by  the  treaty  of  peace  between 
the  United  States  and  Spain. 

This  accords  with  the  jpinions  recently  delivered  by 
Judges  Kane  and  Ingersoll,  quoted  supm,  so  that  ^  my 
consider  it  settled  that  citizens  of  the  United  States  :  ^  go 
abroad  and  enlist  in  foreign  service. 

But,  according  to  the  doctrine  sustainod  by  the  federal 
courts,  an  Knglishman,  who  has  become  naturalized,  will 
be  treated  as  a  traitor,  if,  after  I'eturning  to  his  native  coun- 

290  ^'T  ^'^  settle  there,  he  be  found  in  arms  against  the  United 
States ;  and  yet  the  application  by  Eugland,  of  the  same 
doctrine,  is  denounced  and  resisted  hy  this  government. 

See  Wharton  s  American  Crirn.  Laic,  3d  ed.,  page  1)02. 
"  It  seems,  however,  that  a  foreigner  who  had  a])plie<l  for 
naturalization  in  this  countrv  and  taken  the  usual  oath,  but 
whose  naturalization  was  not  at  all  completed,  and  who 
being  abroad,  tiiere  enters  such  a  privateer,  I't^c,  would 
hardly  fall  within  the  compass  of  the  Act."  United  States 
V.  Villato,  2  Ball.  170. 


95 


my 

,  iro 


292 


We   have   now,   in   the   correspondence   he/ore  us,   still    29l 
another  step  taken  in  this  career  of  inconsistency/,  it  being 
nov  contended  I>y   the   United  States  that  iiitei-national 
law  is  violated,  if  tbreigners  resident  here  are  invi.ed  to 
return  liome  to  serve  their  native  country. 

Even  in  England  there  is  nioro  treedoni  of  speech  and 
action,  in  this  respect,  than  Mr.  Marcy  Mould  alloM'  in  this 
Jiepublic.  Any  person  may  put  fortli  advertisenu-nts  in  the 
English  newpapers,  or  uiiike  speeches  in  |)uhlic,  recoin- 
niending  tlie  foreigners  now  resident  in  England  to  leave 
that  country  anil  come  to  tie  T'nited  States,  fur  example, 
for  the  i)ur|)0?e  of  enterin<i'  into  the  militarv  service  of  this 
country. 

The  Act  .")!*.  Gi-o.  'A,  '-h.  (!!)  provides  that,  if  any  natural 
born  subject  sluiU,  without  leave,  enter  or  agree  to  enter 
into  foreign  nulitary  service,  or  shall  agree  to  go,  orshall 
go  to  any  foreign  country,  with  intent  to  enlist,  or,  if  any 
person  whatever,  v/ithin  tiie  Enited  Kingdom  or  in  any 
part  t)f  llis  Majesty's  dominions  el-^ewhere,  "shall  hire,  re- 
tain, engage  or  procure,"  or  attempt  to  hire,  (.V'c,  any  ])er- 
son  to  eidistin  a  foreign  service,  or  to  go  abroad  for  that 
purpose,  he  shall  be  deemed  guilry  of  a  misileinoanor. 

See  -'5  Jhirn\t  Justice,  by  D'Oyley  A:  Williams,  p.  240, 
title  "  Eoreigii  Service  :" 

As  a  natia'al  born  sulijeet  of  the  (^ueen  of  England  can- 
not lawfullv  enlist  i:i  foreign  >ers  ice  ;  it  would  ]»o  a  mis- 
demeanor at  (Jomnion  law  to  advise  or  jier-uade  him  to  do 
so.  But  the  Act  of  Parlianu'Ut  does  not  make  it  [lenal  to 
advise  or  persuade  a/<>/v/V/>/rr resident  in  England  toenn'g- 
rute  for  the  purpose  of  etdisting  in  foreign  service,  nor  is  it 
an  oli'ence  to  assist  him  in  the  accomplishment  of  that  pur- 
pose. 

The  Act  is  a  penal  one,  and  would  l)e  strictly  construed, 
ami  acts  of  advice  and  assistance  wouKl  not  be  treated  as 
acts  of  hiring  or  [)rocuring,  A:c, 

No  one  in  England  \'  ould  think  of  ol»jecting,  that  either 
the  letter  or  the  spirit  of  the  Act  of  Parliament  would  be 
violated  by  this  cour>e  of  j)roceedi.ig,  although  that  Act  is 
more  rigid  in  its  provisions  than  the  Act  of  Congress.  Nor 
would  it  be  contended  that  the  sovereign  rights  of  Great 
Britain  would  be  violated,  if  agents  of  this  Republic  were  to 


293 


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295  persuade  and  assist  the  foreign  residents  in  England  to 
come  to  the  United  States  lor  any  pni'j)ose  whatever. 

Mr.  Marcy,  not  content  even  with  the  doctrine,  that  it  is 
nidawl'ul  to  invite  I'oreignei's  to  leave  the  United  States, 
and  go  into  foreign  service,  intimates  that,  if  an  Act  of 
Congress  should  he  passed  forbidding  any  person  from  leav- 
ing the  United  States  for  the  ])nriiose  of  eidlsting  as  a  soldier 
within  the  r>ritish  territory,  ihen  f/tc  wrt/v/y//  ri<jhtfi  of  the 
Unittd  SUiU'S  woxhi  he  iufi  iiKjcd  hi/  (nrat  Britain,  if  she 
enlisted  such  person,  (ante  folio  J.'ii.'.)  And  yet  Mr.  Marcy 
would  doubtless  deny,  that  tlio  sovereign  rights  of  (treat 
Britain  are  violated  when  British  subjects  are  enlisted  in 

21>C  the  United  States  army  and  mivy,  although  this  govern- 
ment is  well  aware  that  the  law  of  luigland  [»rohibits  them 
from  entering  Into  foreign  nulitarv  servic(? ! 

The  upshot  of  all  this  is  simply  that  this  country  is  to 
claim  all  the  bcnetit  of  a  su]»|»osed  rule  of  law  which  is 
nevertheless  to  bu  repudiated  when  any  other  country  in- 
vokes it.  An«l  the  ji'overnuuMit  of  the  Ignited  States  is  to 
disregard  the  laws  of  other  c<mntrics,  forbidding  the  ex- 
patriation of  their  subjects  or  citi/A  lis,  but  the  C'ourts  here 
are  to  enfoi-ce  similar  laws  forliidding  the  exjiatriation  of 

297  American  citizens  native  or  naturalized. 

Mr.  Marcy  has  not  directly  insistt'd  that  the  law  of 
nations  would  Ik;  violated  by  thi'  ads  of  agents  of  a  foreign 
government,  which  would  l)e  objectionable  if  performed  oy 
private  persons.  Hut  the  argument  in  his  last  letter  is, 
that  in  every  instance  whore  a  person,  whether  a  citizen  or 
foreigner,  has  been  induced  by  agents  to  leave  this  country, 
for  the  ])ur])ose  of  enteiMUg  into  n  fori'ign  service,  the  law 
of  the  United  States  has  hvon  violated. 

298  I^  private  persons  may  lawfully  assist  the  emigration  of 
individuals  intending  to  become  soldiers  in  a  foreign 
service,  the  agents  (»f  a  foreign  govtn'ument  may  do  the  like 
until  [)rohibited  by  legislation.  (See  ///^^<'fo.  5S  and  note  19.) 

No  publicist  artirms  that  it  i^  uidawlul  for  the  agent  of  a 
foreign  government  to  do  what  is  in  itself  lawful,  and  what 
may  be  done  by  private  individuals. 

In  a  State  where  millions  of  the  inhabitants  come  from 
other  countries,  where  the  Heets  and  armies  are  composed 
chiefly  of  foreigners,  and  where  the  right  of  e.xpatriation  is 


md  to 

[it  it  is 

States, 

Act  ol' 

111  leav- 

Hoklior 

of  the 

if  «he 

Marcv 

(treat 

>ted  in 

iroveni- 

s  them 


11  led  ov 


97 

insisted  on,  it  cannot  be  improper  for  the  agent  of  a  foreign  299 
government  to  call  public  attention  to  the  advantages  to  be 
gained  from  the  exercise  of  tliat  right  by  either  the  tem- 
porary residents,  or  naturalized  or  native  citizens. 

If  it  be  conceived  that  good  policy  requires  some  restraint 
in  this  particular,  let  now  laws  bo  made  accordingly. 

The  passage  quoted  by  Mr.  Marcy,  from  Vattel,  draws 
no  distinction  between  the  acts  of  private  persons  and 
those  of  the  agents  of  a  foreign  government. 

BynhershoBck^  in  his  treatise  on  the  law  of  war,  {chap. 
22,)  considei's,  the  (juestion,  "  whether  a  prince  may,  in  the  300 
ten'itory  of  afriemlbj  sovereign,  enlist  private  individuals, 
who  are  not  soldiers,  and  make  use  of  them  in  war  against 
his  own  enemies."  He  says  ;  "  It  is  certain  that  if  a  prince 
prohibits  his  subjects  from  transferring  their  allegancc  and 
entering  into  the  army  or  navy  of  another  sovereign,  such 
sovereign  cannot  with  propriety  enlist  them  into  his 
service ;  but  where  no  such  prohibition  exists,  (as  is  the 
case  in  most  of  the  countries  of  Europe,)  it  is  lawful,  in 
my  opinion,  for  the  subject  to  abandon  his  country,  immi- 
grate into  another,  and  there  serve  his  new  sovereign  in  a 
military  capacity.  301 

"  It  is  lawful,  I  rojieat  it,  if  there  is  no  law  that  prohibits 
it,  for  a  subject  to  change  his  condition  and  transfer  his 
allegiance  from  one  sovereign  to  another.  The  writers  on 
public  law  are  all  of  this  opinion;  nor  does  Grotius  dissent 
from  them,  but  he  adds,  that  expatriation  is  not  lawful 
among  the  Muscovites,  and  we  know  that  it  is  unlawful 
also  amongst  the  English  and  Chinese  t"  *  *  * 
"  If  it  is  lawful  for  a  subject  to  pass  under  the  dominion 
of  another  prince,  it  must  be  so  likewise  for  him  to  seek 
the  means  for  procuring  an  honest  livelihood,  and  why 
may  he  not  do  it  l)y  entering  into  the  land  or  sea  service  ?  302 
In  the  United  Provinces  there  is  certainly  no  law  to  prevent 
it ;  and  many  Dutchmen,  formerly,  as  well  as  within  my 
own  recollection,  have  served  other  sovereigns,  by  sea  as 
well  as  by  land. 

"  When  I  speak  of  other  sovereigns,  I  only  mean  those 
who  are  in  amity  with  us." 

*        *        *    "If,  therefore,  our  subjects,  whose  assist- 
lince  we  do  not  want  in  time  of  war,  and  who  are  not  pre- 
13 


98 


303 


U',.) 


304 


305 


306 


vented  by  any  law  from  transfering  tlieir  allegiance,  may 
lawfully  hire  out  tlieir  military  servicer  to  a  friendly  prince, 
why  may  not  also  that  friendly  prince  nifiH  soldiers  in  the 
territoi^y  of  a  friendly  nation  f  Where  it  is  lawful  to  let 
out  to  hire,  it  is  also  lawful  to  hire,  and  why  should  it  not 
be  equally  so  to  contract  for  the  hiring  of  Boldioi*s  in  the 
territory  of  a  friend,  as  to  make  any  other^contract  and 
carry  on  any  kind  of  trade." 

He  answera  the  objection,  that  the  soldiers  thus  hired, 
may  possibly  be  employed  against  their  own  sovereign,  by 
saying,  "  that  we  are  only  to  attend  to  the  state  of  our 
country  at  the  time,  and  ought  not  to  look  so  far  into 
futurity.  Nor  do  I  see  any  difference  between  enlisting 
men  and  purchasing  gun  powder,  ammunition,  arms  and 
warlike  stores,  which  may  certainly  be  done  by  a  friendly 
sovereign  in  our  country,  and  which  ho  may  also  use  after- 
wards against  us."  *  *  *  <'  I  ani  of  opinion, 
therefore,  that  the  same  law  which  obtains  as  to  the  pur- 
chase of  implements  of  war,  must  apply  in  like  manner  to 
the  enlistment  of  soldiers  in  the  territory  of  a  friendly 
nation,"  unless  there  is  a  legal  prohibition.  IIo  mentions 
that  there  is  such  a  prohibition  in  the  Ihiited  Provinces. 

BynkershcecJc's  doctrine  is  not  that  enlistments  may  be 
made  in  a  neutral  country  without  the  ])ernns8ion  of  the 
sovereign,  but  that  (if  that  permission  be  obtained)  the  ob- 
jections often  raised  to  the  practice  are  insuflBcient. 
Neither  of  the  belligerents  can  complain  of  it,  if  partiality 
be  not  shown,  and  if  the  practice  be  not  a  novel  one. 

Whether  Bynkershoeck's  opinion  be  sound  or  not,  no  ob- 
jection can  be  raised,  even  by  the  most  captious,  against 
the  right  to  publish  advertisements  in  a  free  neutral  country 
stating  the  terms  on  which  foreigners  resilient  there  will, 
on  emigrating  to  another  country  be  received  into  the 
service  of  any  of  the  belligerents,  that  is  to  say,  if  there  be 
no  positive  law  prohibiting  such  advertisements. 

It  will  perhaps  be  said  that  citizens  of  the  United  States, 
whether  native  or  naturalized,  should  not  be  permitted  to 
expatriate  themselves  and  enlist  in  foreign  service,  because 
they  might  be  opposed  to  each  other.  But  this  considera- 
tion will  not  appear  to  be  entitled  to  any  weight,  when  we 
reflect  upon  the  fact  that  in  this  republic  men  from  all  parts 


99 


le,  may 
prince, 
sin  the 
111  to  let 
d  it  not 
I  in  the 
act  and 

18  hired, 
eign,  by 
of  our 

far  into 
mlisting 
rins  and 

friendly 
ise  after- 
opinion, 
the  pur- 
anner  to 

friendly 
mentions 
s'inees. 

may  be 
ri  of  the 
)  the  ob- 
iufficient. 
)artiality 
lie. 

)t,  no  ob- 
i,  against 
1  country 
lere  will, 

into  the 
"  there  be 

3d  States, 
tnitted  to 
,  because 
ionsidera- 
when  we 
1  all  parts 


of  Europe  arc  encouraged  to  absolve  themselves  from  their  307 
allegiances,  and  uro  enlisted  in  the  armies  ot  the  rejmblic, 
and  may  indeed  be  compelled  by  this  government  to  fight 
against  their  native  country. 

Vattel,  Book  3,  cli.  2,  sec.  13,  examines  tlie  question, 
"  whether  the  proil-ssion  of  a  mercenary  soldier  be  lawful 
or  not^  or  whether  individuals  may,  for  money  or  any 
other  reward,  engage  to  serve  a  foreign  prince  in  his 
wars  r'  lie  says,  ''  This  question  does  not  to  me  appear 
very  difficult  to  bo  solved.  Thoy  who  enter  into  such  en- 
gagements, without  tlui  express  or  tacit  consent  of  their  308 
sovereign,  offend  against  the  duty  of  subject.  But  if  their 
sovereign  leaves  them  at  liberty  to  follow  their  inclination 
for  a  military  life,  they  are  absolutely  free.  Now,  every 
man  joins  himself  to  whatever  society  he  pleases,  and  which 
to  him  appears  to  Jiiiu  most  advantageous,  lie  may  make 
its  cause  his  own,  and  espouse  its  (piarrels." 

In  Tho  United  iStatcs  vs.  Wijiujall,  it  was  held  by  the  Su- 
preme Court  of  the  State  of  Xew  York,  in  the  year  1843, 
5  liiWa  RqK^  22,  tliat  "  there  is  no  statute  or  principle  of 
public  policy  which  forbids  the  enlistment  of  aliens  into 
the  army  of  the  United  States."  309 

Per  (Jur.,  p.  22.  ♦•  It  is  supposed,  however,  that  inde- 
pendently of  the  statute,  there  is  such  an  imiitness  in  an 
alien  enlisting  in  our  army,  thus  obliging  himself  to  fight 
perhaps  against  his  own  country,  that  tlie  act  is  criminal 
by  tlie  law  of  nations.  We  were  not  referred  to  any  pub- 
licist who  has  a<lvanced  such  an  opinion,  nor  are  wq  aware 
of  any.  There  is  nothing  in  the  law  of  nations  which  denies 
to  a  sul)ject  the  right  of  expatriation.  On  the  contrary, 
the  rigiit  is  asserted  by  all  ap[)roved  writers  on  that  law;  o\q 
sometimes  indeed  w  or  qualllications,  but  every  man  must 
in  eftect  be  his  own  judge,  whether  he  will  continue  subject 
to  the  government  under  which  he  was  born,  or  transfer  his 
allegiance  to  another.  Hardly  any  nation  in  the  civilized 
world,  whoso  subject  has  expatriated  himself,  would  at  this 
day  claim  to  treat  him,  even  in  time  of  war  with  his  adopt- 
ed country,  as  still  bound  by  his  original  obligations.  I 
speak  not  of  the  common  law,  nor  of  any  that  is  merely 
local  to  the  country  of  his  first  residence,  but  of  the  rules 
which  govern  the  intorcoui-se  of  nations  in  their  corporate 


100 


t! 


'I  1 


',' 


1:^ 


I 
t' 


\>l.. 

M-    ^ 

:.:i 


I  Hi 


m::   ' 


811  capacity.  (See  Vattd,  B.  1,  cA.  19,  tieo.  220  ^o  226.  Du 
Ponceau'' 9  Bynkcrtthaick^  chaf.  22,  p.  175.)  Kinijrratioii,  en- 
liBtment,  aud  taking  tho  soldier's  outli,  is  ett'octually  a 
change  of  allegiance.  'Iliough  it  do  not  confer  all  the 
rights  of  citizenship,  it  is  a  naturalization  quoad  hon  ;  and  if 
the  expatriation  bo  bona  Jide,  there  is  nothing  contrary 
either  to  law  or  morals  in  tho  soldier  lighting  against  his 
original  country,  should  a  war  break  out  between  that  and 
the  one  into  whoso  service  ho  has  chosen  to  enter.  Being 
domiciled  in  the  latter  for  any  purpose,  his  native  country 
would  not,  in  time  of  war,  discriminate  between  him  and 

312  his  neighbors.  Tho  person  and  effects  of  each  would  be 
alike  exposed  to  the  violence  and  ravages  of  the  conflict, 
and  both  would  bo  equally  entitled  to  defence  and  protec- 
tion from  his  adopted  country.  Who  would  deny  that  un- 
der such  circumstances,  he  might  properly  render  assist- 
ance of  any  kind  toward  the  common  defence? 

But  whether  he  may  resist  his  own  country  or  not,  he 
may  enlist  in  a  foreign  seiwice,  binding  himself  in  general 
terms  and  acting  accordingly,  so  long  as  his  country  is  at 
peace  with   the  state  to  which  he  engages  himself.     The 

313  right  to  do  so  much,  even  without  an  intent  to  transfer  his 
allegiance,  has  always  been  recognized  in  practice,  and 
forms  a  familiar  head  in  the  works  of  publicists.  Vattel 
pronounces  it  to  be  always  lawful,  many  times  laudable; 
and  he  defines  the  obligations  which  spring  out  of  the  rela- 
tion thus  created.     ( Vattel,  B.  8,  c.  2, .?.  13  and  14.) 

It  has  been  said  that  the  project  of  enlisting  in  the  British 
Provinces  emigrants  from  the  United  States,  was  ill  con- 
ceived and  impracticable,  on  account  of  the  material  pros- 

314  parity  of  the  people  of  this  Republic.  On  this  point  the 
New  York  Evening  Post  (March  Sth,  185H,)  makes  the  fol- 
lowing remarks : 

"It  was  the  most  natural  thing  in  the  world  that  when 
Great  Britain  wanted  soldiers,  she  should  have  bethought 
herself  of  a  country  which  had  sent  out  so  many  warlike 
expeditions  against  nations  with  which  it  was  at  peace, 
which  abounded  with  men  of  a  roving,  adventurous  spirit, 
and  the  government  of  which  had  so  very  recently  given 
an  example  of  its  contempt  for  the  obligations  of  neutrali- 
ty.   Here  they  deemed  it  easy,  by  the  exercise  of  a  little 


101 


26.    Du 

itiou,  en- 

tiinlly  a 

all  the 

,'  and  if 

contrary 

aiiist  his 

thnt  and 

Being 

country 

\hn  and 

ronld  be 

conflict, 

I  protec- 

that  nn- 

jr  assist- 

•  not,  he 
I  jweneral 
try  is  at 
\\l  The 
mster  his 
ice,  and 
Vattel 
indable ; 
the  rela- 

0  British 

1  ill  con- 
I'ial  pro8- 
loint  the 
J  the  fol- 


lat  when 
jthought 
warlike 
t  peace, 
iiB  spirit, 
ly  given 
neutrali- 
f  a  little 


315 


qwiot  dexterity,  to  collect  recruits  for  thoir  ai-my  in  the 
East.  They  tried  the  ox|)eriinent,  and,  to  tiieir  surprise, 
found  those  who  were  onii)loycd  in  this  service  watched 
and  prosecuted." 

The  fact  is  that  at  this  time  there  were  many  thousan.ds  of 
able-bodied  men  in  Xew  Vork  and  other  large  cities  of  the 
IJ.  S.,  emigrants  from  Iroliiiid  {iiuKlornmny,  out  of  employ- 
ment and  entirely  destitute.  And  hut  for  the  latitudinarinn 
construction  put  upon  the  act  of  (Jongrussby  tlie  Pierce  ad- 
ministration, several  regimentb  could  easily  luive  been  ob- 
tained in  the  way  i»roi»ose(l.  It  may  be  iiure  observed  that 
the  distress  was  by  no  means  conHiicd  t(»  emigrants,  tliouidi 
it  was  from  that  class  that  the  recruits  weiv  expected  to  316 
come. 

An  unprejudiced  en(juirer  can  scarcely  fail,  after  a  care- 
ful perusal  of  the  correspondence  under  review,  to  come  to 
the  conclusion,  that  in  no  respect  wiuitciver  can  the  conduct 
of  the  British  Goveriiiiu'iit  be  justly  com])laiiied  of  by  the 
Government  of  the  United  States.  It  even  appears  doubt- 
ful whether  the  complaint  has  been  prosecuted  in  good  faith, 
for  it  seems  ditticult  to  escape  the  conclusion  that  the  real 
object  of  the  President  throughout  tlie  correspondence  has 
been  to  pick  a  quarrel  with  England,  to  bo  turned  to  ac- 
count in  the  event  of  a  defeat  of  tlie  Allies  in  the  war  Avith 
Russia.  If  the  Allies  had  been  compelled  to  raise  the  siege  317 
of  Sebastopol,  and  if  that  luul  been  followed  by  the  defec- 
tion of  Austria,  it  is  not  imj)robable  that  the  United  States 
would  have  been  found  enrolled  amongst  the  supporters  of 
Russia. 

As  matters  now  stand,  there  is  i)nt  little  probability  of  a 
rupture  between  England  and  the  United  States ;  but  it  is 
evident,  from  the  captious  spirit  dis])layed  by  the  latter  in 
this  correspondence,  that  the  continuance  of  peace  depends 
upon  the  question,  whether  a  convenient  opportunity  shall 
present  itself  to  this  Goverjnnent  for  joining  the  enemies  of  313 
Great  Britain.  At  all  events  a  casus  belli  will  never  be 
deemed  wanting  by  this  Government  so  long  as  the  control 
of  affairs  remains  in  the  hands  of  men  who  have  got  up 
the  tissue  of  absurdities,  misrepresentations,  quibbles,  and 
inconsiBtencies  displayed  in  the  above  correspondence. 


!!'-.f  \ 


102 


f '  ^ 


319  The  reply,  on  behalf  of  the  British  (4ovornmont,  to  Mr. 
Marcy,  will  probably  not  follow  that  gentleman  througii  all 
his  verbose  special  pleading.  It  may  bo  presumed  that 
Lord  Clarendon  has  not  sufticient  leisure  t(»  write  a  treatise 
by  way  of  answer  to  that  of  Mr.  Marcy,  and  will  be  content 
to  expose  the  elaborate  fallacies  of  the  latter  by  reiterating 
u  few  i»lain  statements  of  facts  and  propositions  of  law. 

A  few  words  fro»n  Mr.  Crampton  would  not  bo  amiss  in 
relation  to  the  exact  period  when  the  now  and  peculiar 
doctrine  as  to  seduction  and  sovereign  rights  was  Hrst  broach- 

320  ed  by  Mr.  Marcy,  and  as  to  the  previous  conversations  be- 
tween those  two  gentlemen  on  the  subject  ot  the  proposed 
enlistments  in  the  British  Provinces  of  foreigners  emigrating 
from  the  II.  S.  for  that  purpose. 

The  withdrawal,  or  dismissal,  of  Mr.  Crampton  a!id  the 
accused  Consuls,  will  by  no  means  settle  the  questions  in 
controversy. 

This  Government  has  demanded,  ''««  a  part  of  the  mt- 
iafaction  due  to  it  from  Great  Britain,  that  the  men  who 
had  been  enticed,  contrary  to  law,  from  the  United  States 

321  into  the  British  Provinces  and  there  enlisted  into  Her  Ma- 
jesty's service,  should  be  discharged."  (Fo.  146.) 

Indemnity  for  the  past  and  security  for  the  future,  are  re- 
quired. (Fo.  155.) 

England  is  required  to  admit  the  soundness  of  Mr.  Marcy 's 
last  constiniction  of  the  act  of  Congress,  and  the  tmsound- 
ness  of  hmjirst  reading  of  the  same,  although  this  is  in  ac- 
cordance with  the  plain  meaning  of  the  act  and  the  judicial 
interpretation  thereof.  Next,  the  soundness  of  the  new  point 
of  international  law  lately  discovered  by  Mr.  Cushing,  must 
be  admitted. 

322  And  after  doing  so,  it  must  be  acknowledged  by  Great 
Britain  that  if  a  law  be  made  in  the  United  States,  forbid- 
ding persons  here  to  go  abroad  to  enlist  in  foreign  service, 
those  persons  cannot  be  enlisted  within  the  British  domin- 
ions without  a  violation  of  international  law,  (fo.  132)  but 
that  tha  laws  of  England,  forbidding  British  subjects  to  en- 
ter into  foreign  military  service  are  void,  so  far  as  regards 
the  United  States,  it  being  competent  for  the  Government 
of  the  latter  to  absolve  British  subjects  from  their  allegi- 
ance. 


lOS 


rt  is  (|uito  likely  that  tlioro  will  bo  some  sli^lit  domiir  to 
all  this,  liuloed,  it  may  not  Iks  very  rash  fo  enrmiflo,  tiiat 
if  poaco  bo  i»ro(;laiiiio(l  in  Kuropo,  we  shall  lintl  Iho  Tierce 
•dminiHt ration  resting,'  content  for  awhile  with  the  (H^i-Mna- 
tic  triumph  which  they  have  achieved  by  hucIi  a  vast  dis- 
play of  learning  and  aciitoness,  and  willing  to  leave  for  a 
more  fitting  opportunity  the  task  of  enforcing  a  complete 
submission  to  these  doctriiioa. 


'.m 


